Citation Nr: 18152194 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-18 995A DATE: November 21, 2018 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a back disability, claimed as back pain and myositis paralumbar spine muscles, is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an inguinal hernia is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), a generalized anxiety disorder, and major depression is remanded. Entitlement to service connection for dyslipidemia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence of record does not establish a nexus between the Veteran’s left knee disability and service. 2. The evidence of record does not establish a nexus between the Veteran’s right knee disability and service. 3. The Veteran’s bilateral hearing loss did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 4. The Veteran’s tinnitus did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to May 1979. As noted above, the Board is recharacterizing the Veteran’s PTSD claim and major depression claims to include all psychiatric disorders that have been diagnosed. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). The Board will consider the issue as entitlement to service connection for an acquired psychiatric disability. Service Connection 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. § 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for left knee and right knee disabilities. Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and certain disabilities become manifest 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1101 (2012); 38 C.F.R. §§ 3.307, 3.309. However, the Veteran’s treatment records do not reflect a diagnosis of or treatment for left or right knee degenerative arthritis for many years following separation from service. Thus, this presumption is not available to the Veteran. Id. The Board also considers the theory of entitlement to service connection for left knee and right knee disabilities on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the claimed disabilities and any incident of active service, as will be discussed below. Service treatment records reflect that the Veteran sought treatment in July 1978 for his left knee. Treatment for his right knee is not noted in the service treatment records. At the Veteran’s April 1979 separation examination his clinical evaluation of his lower extremities was normal. Next, and more importantly, post-service evidence does not reflect complaints or treatment associated with either his right or left knee for many years after service discharge. Such tends to negate a finding for service connection based on direct service incurrence. The Veteran’s reported history of continued symptomatology since active service has also been considered but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant’s uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, records do not reflect problems related to the Veteran’s knees for many years following separation from service. Post service treatment records first reflect treatment for his right knee around 2011 and his left knee around 2015. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed conditions, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This long period without problems weighs against the claims. The value of the Veteran’s assertions is additionally diminished, given that there is clinical evidence indicating that his lower extremities were normal at the time he left service. Accordingly, the Board finds the Veteran’s statements asserting continuity of symptomatology of right or left knee problems since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran’s statements, it may consider whether self-interest may be a factor in making such statements). Continuity of symptomatology has not here been established, either through the competent evidence or through the statements submitted by the Veteran. Having determined that the Veteran’s alleged clinical history regarding onset and continuity of right or left knee disabilities is not consistent with the evidence, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In a February 2015 statement the Veteran’s private treating physician diagnosed the Veteran with degenerative joint disease of the knees. He opined that the Veteran’s musculoskeletal disorder is more probable than not secondary to his military service performance. No rationale was provided, and thus, the Board finds the February 2015 opinion to be inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A July 2015 VA examination and opinion were also provided. The VA examiner specifically opined that the Veteran’s degenerative joint disease of the knees was less likely as not incurred in or cause by an in-service injury, event or illness. The VA examiner noted that he had reviewed the Veteran’s treatment records, and the February 2015 statement from the private treating physician. He noted that there is evidence in the military medical records that the Veteran had twisted his left knee in July 1978 while on active duty. However, he noted that since then military, private and VA medical records were silent for the condition claimed at least within 5 years after being released from active service. The VA examiner stated that this means that the knee condition diagnosed while in active service was acute and transitory and improved with proper treatment given. He stated that it is important to mention that the Veteran reported he was treated for knee conditions in 2011 in conjunction with a worker compensation claim. He also stated that it is very well known in medical literature that knee osteoarthritis can be considered part of the normal aging progress in patients older than 40 years old. With respect to the Veteran’s right and left knee disability claims, the Board has reviewed all etiological opinions in detail. The Board affords more probative weight to the July 2015 VA medical opinion. The Board understands the Veteran’s concerns but notes that the most competent and probative evidence of record simply shows no etiological relationship between the Veteran’s right or left knee and service. While some evidence supports these claims, the positive February 2015 private opinion is entitled to very low probative value, as discussed above. The Board finds that the best evidence in this case provides highly probative evidence against these claims. The Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and either his left or right knee disabilities. Although the Board recognizes that the Veteran is competent to report feelings of knee pain, the evidence in this case clearly demonstrates that his right and left knee arthritis developed many years following separation from service. There is simply nothing in the record to support a finding that his right or left knee disabilities are otherwise in any way related to service. In any event, the probative value of the Veteran’s contentions is outweighed by the July 2015 VA opinion. In sum, the competent evidence does not establish that the Veteran’s currently diagnosed degenerative arthritis of the right and left knees is related to his period of active duty in any way. The most probative medical evidence of record has demonstrated that the Veteran’s right and left knee disabilities are less likely than not related to service. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran’s claims, and as such they must be denied. 2. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran asserts that he developed hearing loss and tinnitus as a result of his experiences during active service. Indeed, the record reflects a military occupation specialty (MOS) of armor senior sergeant, which is highly probable for hazardous noise exposure. The Board has reviewed all the relevant evidence of record, and finds that the preponderance of the evidence weighs against the Veteran’s claims. The Board concedes that the first Shedden element of a current disability has been met, as the Veteran has current diagnosed bilateral hearing loss sufficient to meet VA disability standards, as well as a current diagnosis of tinnitus. See August 2015 VA examination. The Board also concedes that the Veteran had in-service noise exposure, meeting the second Shedden element. Therefore, the remaining element to be discussed is that of a nexus between the Veteran’s service and his current tinnitus and hearing loss. The Board has reviewed the Veteran’s service treatment records (STRs). The Veteran’s April 1979 separation examination reflects normal hearing. Indeed, the Veteran’s STRs contain no complaints of hearing loss or tinnitus. In addition, the April 1979 separation report of medical history reflects that the Veteran reported that he did not have, nor had he had, hearing loss or ear trouble. The first post-service evidence of complaint, diagnosis or treatment of bilateral hearing loss and tinnitus is in a February 2015 statement from the Veteran’s private treating physician. The private physician did not address the etiology of his hearing loss or tinnitus, although he did note the Veteran’s reports of hearing loss and tinnitus due to high noises during military operations. An August 2015 VA audiological examination report reflects that the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. After a physical examination and review of the claims file, the VA examiner opined that it was less likely than not that the Veteran’s hearing loss or tinnitus is related to service. The VA examiner noted that the Veteran’s audio examinations in April 1978 and April 1979 show normal hearing in both ears prior and after military service. The examiner considered the February 2015 private treatment record which noted that the Veteran has tinnitus and bilateral deafness but stated that no audiological evaluation was included with the review. The VA examiner noted the Veteran’s complaints of hearing difficulty and tinnitus for years and that the current examination is consistent with bilateral mild to moderate sensorineural hearing loss. She stated that it is well established in the medical literature that exposure to high levels of noise causes either immediate hearing loss, such as in cases of noise/acoustic trauma, or progressive hearing deficits during prolonged periods of exposure during military service. However, she concluded that the retroactive effects in hearing are not expected years after exposure to military noise. Regarding tinnitus, the Veteran could not specify the specific onset of his symptomatology. The examiner opined that it was less likely than not that tinnitus was caused by or a result of military noise exposure. The VA examiner noted that audio tests completed in April 1978 and April 1979 show normal hearing in both ears both prior to and after military service. She noted that the Veteran had a diagnosis of clinical hearing loss, and tinnitus is known to be a symptom associated with hearing loss. She stated that the Veteran’s tinnitus is less likely as not caused by noise exposure or acoustic trauma during military service. After reviewing all the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus. Initially, the Board finds that presumptive service connection is not warranted as there is no evidence to show that the Veteran was diagnosed or had onset of bilateral hearing loss or tinnitus either during service or within the first year after separation from service. The Board finds it significant that the Veteran’s separation examination shows he had a normal audiological examination, and he specifically reported having no issues with his hearing on separation from service. The only medical opinion to address the medical relationship, if any, between the Veteran’s bilateral hearing loss and tinnitus and active service weighs against the claims. The August 2015 VA examiner’s opinions considered all the evidence of record, to include the Veteran’s assertion that his hearing loss and tinnitus were caused by noise exposure during active service, and opined that the Veteran’s bilateral hearing loss and tinnitus were not related to service. The Board finds that these opinions constitute probative evidence on the medical nexus question, based on a review of the Veteran’s documented medical history, assertions, and physical examination. The opinions provided clear rationale based on an accurate discussion of the evidence of record, to include consideration of in-service and post-service noise exposure, as well as the Veteran’s lay opinions regarding the etiology of his hearing loss and tinnitus. Prejean v. West, 13 Vet. App. 444 (2000). Additionally, the Veteran has not presented or identified any contrary medical opinion that supports the claims for service connection for bilateral hearing loss or tinnitus. VA adjudicators are not free to ignore or disregard the medical conclusions of a physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran can testify to that which he is competent to observe, such as symptoms denoting loss of hearing and tinnitus, but he is not competent to provide a medical diagnosis of hearing loss or to relate any symptoms of hearing loss to noise exposure in service. The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While the Veteran attributes bilateral hearing loss and tinnitus to service, it does not necessarily follow that there is a relationship between current bilateral hearing loss or tinnitus and service. The Board finds that the contemporaneous in-service evidence of record, as well as audiological testing considered with the August 2015 VA examination, is of more probative and persuasive value than the Veteran’s assertions. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that bilateral hearing loss and tinnitus are related to active service. As the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, the claims must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Entitlement to service connection for (a) back disability; (b) a left hip disability; (c) a right hip disability; (d) a left ankle disability; (e) a right ankle disability; (f) sleep apnea; (g) inguinal hernia; (h) an acquired psychiatric disability and (i) dyslipidemia is remanded. The post-service medical evidence includes treatment records which reflect current diagnoses of chronic myositis paralumbar spine muscles, left and right hip degenerative joint disease, left and right ankle degenerative joint disease, sleep apnea, generalized anxiety disorder, major depression, PTSD, and dyslipidemia. The record additionally contains a February 2015 statement from the Veteran’s private treating practitioner which notes that the Veteran’s disabilities are more probable than not secondary to his military service performance. Unfortunately, this opinion lacks rationale. As such, this opinion is not adequate for adjudication purposes. In light of this evidence, the Veteran should be afforded VA etiological opinions to determine etiology of his back, left hip, right hip, left ankle, right ankle, sleep apnea, acquired psychiatric and dyslipidemia disabilities. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to his inguinal hernia, service treatment records reflect treatment for pain in his groin in February 1979. The Veteran continues to assert that he has an inguinal hernia disability related to his time in service. The Board finds that the Veteran should be afforded VA examination to determine the nature and etiology of any inguinal hernia disability found. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to TDIU is remanded. The Veteran’s claim for entitlement to TDIU is inextricably intertwined with his remanded claims for service connection. Therefore, the Board will not issue a decision on this claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are ‘inextricably intertwined’ when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of his (a) back disability; (b) left hip disability; (c) right hip disability; (d) left ankle disability; (e) right ankle disability; (f) sleep apnea; (g) inguinal hernia; (h) any acquired psychiatric disability; and (i) dyslipidemia. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with the examinations, and each examiner must indicate that such review occurred. The examiners should provide well-reasoned opinions on: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed back disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. b. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left hip disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. c. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed right hip disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. d. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left ankle disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. e. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed right ankle disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. f. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed sleep apnea disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. g. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed inguinal hernia disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. h. The VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran’s symptoms are related to the claimed stressor(s). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and must comment upon the link between the current symptomatology and the Veteran’s claimed stressor(s). If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder, to include any diagnosed during the period on appeal, either began during or was otherwise caused by the Veteran’s military service. If the VA examiner determines that a diagnosis of PTSD has not been demonstrated at any point in time since the Veteran filed his claim, the VA examiner must provide rationale for this determination. i. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed dyslipidemia disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. All opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel