Citation Nr: 18152923 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-43 892 DATE: November 27, 2018 ORDER Entitlement to service connection for a right shoulder disorder, to include acromioclavicular (AC) joint osteoarthritis, is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a left hip disorder, to include arthritis, is denied. Entitlement to service connection for left lower extremity radiculopathy is denied. Entitlement to service connection for right lower extremity radiculopathy is denied. Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against the finding that the Veteran has a right shoulder disorder due to a disease or injury in service, to include as due to parachute jumps in service. 2. The preponderance of the evidence is against finding that the Veteran has a low back disorder due to a disease or injury in service, to include as due to parachute jumps in service. 3. The preponderance of the evidence is against finding that the Veteran has a left hip disorder due to a disease or injury in service, to include as due to parachute jumps in service. 4. The preponderance of the evidence is against finding that the Veteran has left lower extremity radiculopathy due to a disease or injury in service, to include as due to parachute jumps in service. 5. The preponderance of the evidence is against finding that the Veteran has right lower extremity radiculopathy due to a disease or injury in service, to include as due to parachute jumps in service. 6. The preponderance of the evidence is against finding that the Veteran has a right ankle disorder due to disease or injury in service, to include a May 1983 right ankle sprain, or has had at any time during the appeal, a current diagnosis of the right ankle. 7. 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 left ear hearing loss for VA compensation purposes. 8. The most probative evidence of record establishes that the Veteran’s right ear hearing loss is caused by, or related to, his active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder, to include AC joint osteoarthritis, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 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 low back disorder are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for left hip disorder, to include arthritis, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a right ankle disorder are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 8. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1973 to July 2000. Service Connection 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including sensorineural hearing loss and arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 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). The United States Court of Appeals for the Federal Circuit has held that “[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 at 1337 (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a right shoulder disorder, to include AC joint osteoarthritis. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a left hip disorder, to include arthritis. 4. Entitlement to service connection for left lower extremity radiculopathy. 5. Entitlement to service connection for right lower extremity radiculopathy. The Veteran asserts that he is entitled to service connection for a right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy on a direct basis. However as outlined below, the preponderance of the evidence of record demonstrates that the Veteran’s right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. The Veteran’s service treatment records (STRs) are silent for complaints or treatment for a right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy. The STRs include two flight examinations and a retirement examination. In March 2004, the Veteran’s first contact with VA, he reported no significant medical history. In a September 2008 VA treatment record, the Veteran complained of right shoulder limitation of motion. The medical provider observed that the Veteran’s right shoulder was non-tender and had no range of motion limitation. In May 2010, the Veteran complained of low back pain and left hip pain that has been periodic for some years. In an October 2012 VA treatment record, the Veteran complained of numbness in the right anterior thigh for several years. He denied low back pain. In a January 2013 statement the Veteran contended that his low back, left hip, and bilateral lower extremity radiculopathy resulted from parachute jumps in-service. As a result, he stated that he has experienced pain since service. In a March 2013 correspondence, the Veteran stated his low back, left hip, and bilateral lower extremity radiculopathy are related to service. He stated that as a paratrooper, he had several jumps where he landed hard. He stated that on one jump, he collided with another jumper and was entangled at landing. He also stated that on another jump, he experienced numbness in his right lower extremity. The Veteran also stated that he injured his back while performing a simulated controlled helicopter crash as a pilot instructor. He stated that he has been experiencing pain in his low back and left hip, and bilateral lower extremity radiculopathy, since retirement. On the April 2013 VA shoulder examination, the examiner diagnosed the Veteran with AC joint osteoarthritis. The Veteran stated that he has experienced increased right shoulder pain and decreased range of motion for the past five to six years. He stated that the pain is worse at night, especially when lying on his right side. On the April 2013 VA back examination, the examiner diagnosed the Veteran with hypertrophic facet disease and bilateral lower extremity radiculopathy. The Veteran reported that he has experienced increased lower back pain with anterior thigh numbness since he retired from service. He stated that his back pain was worse with frequent bending, twisting, and lifting. He stated that the anterior thigh numbness worsens with prolonged sitting and standing. On the April 2013 VA hip examination, the examiner diagnosed the Veteran with osteoarthritis of the bilateral hips. The Veteran stated that while in service around 1985, he had left hip pain while running. He stated that he did not report the pain in service for fear of being grounded as a pilot or released from the Army. He stated that the pain has progressed since service and the pain was worse at night, caused by lying on his left side. The April 2013 VA examiner opined that the Veteran’s right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy were less likely than not incurred in or caused by service. The examiner noted that the Veteran’s in-service annual physicals were negative for complaints or findings of any shoulder disorder, back disorder, left hip disorder, or bilateral lower extremity radiculopathy. Further, the examiner noted that the STRs are generally silent for complaints or treatment for a shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy. The examiner found that the earliest report of shoulder pain was in 2008, eight years after separation from service. The earliest report of a low back disorder and lower extremity radiculopathy was in 2012, twelve years after separation from service. The examiner reasoned that the gap between service and actual objective evidence of complaints of a shoulder disorder, a back disorder, a hip disorder, and bilateral lower extremity radiculopathy is too large to make a correlation without significant speculation. The examiner reasoned that even considering that serving as a parachutist is very physically demanding on the body, it is still likely that the Veteran’s disorders are age related rather than service related in light of the lack of complaints or treatment during service. Based on the foregoing, there is no evidence that the Veteran’s right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy was manifested in service or to a compensable degree in the first year following his separation from service. Specifically, at separation from service, the Veteran’s musculoskeletal system was normal, and he made no musculoskeletal complaints. Further, in 2004, four years after separation, the Veteran made no complaints to VA regarding his right shoulder, low back, left hip, or bilateral lower extremities. Consequently, service connection for a right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy on the basis that such became manifest in service and persistent, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the right shoulder disorder, low back disorder, left hip disorder, or bilateral lower extremity radiculopathy continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 288, 295-96 (1997). There is also no competent medical evidence that the Veteran’s right shoulder disorder, low back disorder, left hip disorder, or bilateral lower extremity radiculopathy is otherwise related to service. The Veteran’s post-service VA treatment records are silent for any opinion relating these disorders to service. The only competent evidence in the record that addresses these questions is the April 2013 VA medical opinion, which stated that the Veteran’s right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy are not related to his service. As there is no other competent evidence to the contrary, and the April 2013 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran’s own statements relating his right shoulder disorder, low back disorder, left hip disorder, and bilateral lower extremity radiculopathy are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether arthritis, hypertrophic facet disease, and radiculopathy, in the absence of credible evidence on continuity, as here, are related to service. See Jandreau v. Nicholson, 492 F. 3d (1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court). Also, arthritis, hypertrophic facet disease, and radiculopathy are diseases of the musculoskeletal system, and the record does not show that the Veteran has training or education in these medical fields; therefore, lay evidence of their etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for a right shoulder disorder, low back disorder, left hip disorder, and right and left lower extremity radiculopathy. Accordingly, the claims must be denied. 6. Entitlement to service connection for a right ankle disorder. The Veteran asserts that he experiences right ankle pain and aching as a result of an in-service right ankle sprain. 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 right ankle disorder and has not had one at any time during the pendency of the claim or recent filing of the claim. 38 U.S.C. §§ 1110, 1131, 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). In a January 2013 statement the Veteran stated that he sustained a right ankle sprain when he jumped out of a jeep during a combat exercise. He stated that he continued to experience right ankle symptoms since the injury. As a result, he stated that he has experienced pain since service. In a March 2013 correspondence, the Veteran stated that in injured his right ankle in 1975 during a field exercise. He stated that for the last few years, he experienced pain in his right ankle if he places too much pressure on the right side of his foot. The April 2013 VA examiner evaluated the Veteran and determined that, while he experienced shooting pain when he hit his right ankle the wrong way and an aching pain during cold weather, he did not have a diagnosis of a chronic right ankle disorder. The examiner found that the Veteran’s right ankle complaints did not cause any functional impairment. Further, VA treatment records do not contain a diagnosis of or treatment for a right ankle disorder. While the Veteran believes he has a current right ankle disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and testing to diagnose. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board also notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a disability under 38 U.S.C. § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, even in light of Saunders, the Board finds that the Veteran does not have a present disability of his right ankle as the April 2013 VA examiner specifically found that the ankle causes no functional impairment. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a right ankle disorder for which benefits are being claimed. Because the evidence does not establish that the Veteran has had a right ankle disorder at any time during the appeal period, the Board finds that the Veteran is not entitled to service connection for a right ankle disorder. The claim must be denied. 7. Entitlement to service connection for left ear hearing loss. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran’s in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). In the STRs, the Veteran did not experience a left ear threshold shift from enlistment to separation from service. The STRs are silent for any complaints of hearing loss. The Veteran’s military MOS as an infantryman, paratrooper, and pilot indicates that he had noise exposure from aircraft. In an April 2013 correspondence, the Veteran stated that he was not allowed to wear hearing protection during parachute jumps because of the need to hear commands from the jumpmaster over the noise of the aircraft engines. He stated that he also participated in live fire exercises. He stated that he wore foam hearing inserts during live fire exercises, but he believed these ear inserts were inadequate for the noise caused by explosions and weapons fire. After service in the infantry, the Veteran stated that he served as a helicopter pilot and as a pilot instructor. He stated that although he wore a flight helmet around aircraft, the helmet did not provide complete hearing protection. He stated that the physician that performed his retirement examination told him that he had hearing loss. Also, the Veteran stated that he has a constant high pitched “squeal” in his ears that was most notable in the morning and he experienced random beeping in one or both ears. A private examination took place in April 2013 to evaluate the Veteran’s claimed bilateral hearing loss. At that time, the Veteran reported that he had difficulty hearing conversations involving multiple people. He stated that he also has difficulty hearing dialogue in movies. The April 2013 medical provider diagnosed the Veteran with high frequency sensorineural hearing loss in both ears. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or the result of service. The medical provider reasoned that by VA standards, the Veteran had normal hearing sensitivity in both ears at the time of his retirement examination in 2000. The April 2013 private audiological examination found puretone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 15 10 15 15 14 LEFT 15 20 5 5 11 The average thresholds were 14 decibels in the right ear and 11 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 100 percent in the left ear. The private medical provider remarked that although there is bilateral high frequency hearing loss present, by VA standards there is hearing loss in the right ear only and it is based upon the word recognition score being less than 94 percent and not upon puretone thresholds. Based on the April 2013 findings, the Veteran does not have hearing loss for VA purposes in the left ear, as there are no frequencies 40 decibels or greater, no three frequencies 26 decibels or greater, or a Maryland CNC test less than 94 percent. See 38 C.F.R. § 3.385. Upon review of the record, the Board finds that there is no competent evidence of current hearing loss in the Veteran’s left ear. In the absence of proof of hearing loss in the left ear, there can be no valid claim as to that issue. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of any current left ear hearing loss, the Board must conclude the Veteran does not currently suffer from any such disability and must thus deny the Veteran’s claim as to that particular issue. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for disability compensation). 8. Entitlement to service connection for right ear hearing loss. According to STRs, the Veteran experienced a right ear threshold shift from July 1983 to April 2000 and retirement from service. Upon review of the record, the Board finds that the most probative evidence of record establishes that the Veteran’s right ear hearing loss is related to his active service. The Veteran’s STRs reveal that he had normal hearing during service for VA disability purposes. However, the Board notes that the audiometric data from the April 2000 retirement examination included increased puretone thresholds in the frequency range of 500 to 4,000 Hertz. In addition, the Board has carefully reviewed the Veteran’s statements of record. The Veteran stated, that he was exposed to loud noises as a paratrooper and pilot. The Board finds that the Veteran, as a lay person, is competent to testify to having been exposed to loud noises during service and experiencing decreased hearing acuity. See Layno, 6 Vet. App. at 470. Moreover, there is no evidence to doubt his credibility. The Veteran’s statements regarding his noise exposure while in service are consistent with his MOS. The Veteran’s statements also reflect a continuity of symptomatology of hearing loss. Accordingly, the Board assigns great probative weight to the Veteran’s statements regarding the inception and persistence of right ear hearing loss. 38 C.F.R. § 3.303(b). Although the April 2013 private examination confirmed a current diagnosis for right ear hearing loss, the medical provider had a negative opinion regarding etiology and military service. The medical provider reasoned that the Veteran had normal hearing sensitivity in both ears at the time of his retirement examination in 2000. This rationale is legally insufficient. In Hensley v. Brown, the Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability merely because hearing was within normal limits on audiometric testing at separation from service. Therefore, the Board finds that the April 2013 private opinion is inadequate with respect to the question of nexus because the medical provider did not address the Veteran’s right ear threshold shift in hearing acuity from enlistment to separation from service. Accordingly, the Board assigns less probative weight to the opinion. As such, based on the most probative evidence of record, the Board finds that the Veteran’s right ear hearing loss is related to active service. Therefore, service connection for right ear hearing loss is warranted. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel