Citation Nr: 18153583 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 11-15 771 DATE: November 29, 2018 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s current left shoulder disability is not related to any in-service injury or event. 2. The Veteran’s degenerative disc disease is not related to any in-service injury or event. 3. The Veteran’s bilateral hearing loss was not incurred in-service and is not otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Coast Guard from February 2001 to February 2005. The Veteran was awarded the Coast Guard Merit Team Commendation, among other decorations. This case comes before the Board of Veterans’ Appeals (the Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board previously remanded these issues to the RO in June 2017. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). VA has complied with the duty to assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Generally service connection will exist if a veteran can show that he has a current disability, that he suffered an in-service injury or disease, and that the current disability or disease is somehow related to that in-service injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Compensation will be paid to eligible Veterans who are disabled by an injury or illness that was incurred or aggravated during active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for a left shoulder condition is denied. The first requirement for service connection is that the Veteran must have a current disability. Here, it is not entirely clear whether the Veteran has a current left shoulder disability. An October 2009 VA examination noted that the Veteran had pain and crepitation with motion of his left shoulder, but X-rays were normal, the Veteran had full range of motion, and the examiner described his left shoulder as normal. At a VA examination in August 2017, the examiner noted the Veteran’s remote history of a left shoulder strain in service, and that the Veteran had less than full range of motion in his left shoulder. Nevertheless, the examiner reported that the Veteran had no functional loss in his left shoulder with full strength. That said, the Veteran has complained of pain in his left shoulder, and he has undergone physical therapy at VA facilities. For the purposes of this appeal, the Board will resolve any reasonable doubt in the Veteran’s favor and conclude that he has a current left shoulder disability The second requirement for service connection is that the Veteran must have suffered in-service from an injury, a disease, or event. Here, the Veteran was noted to have suffered left shoulder sprain while in service in August 2004. As such, the second requirement is met. The final requirement for service connection is that a nexus exists between the Veteran’s current disability and the Veteran’s in-service injury, disease, or event. Here, there is no competent evidence of a nexus between the Veteran’s current disability and the Veteran’s in-service injury. At the Veteran’s August 2017 VA examination, the examiner reported that it is less likely than not that the Veteran’s current disability is related to his active service and to any injury therein. The examiner acknowledged the Veteran’s in-service strain, but noted that the remainder of his records were silent as to any left shoulder injury or treatment. She further noted that the Veteran subsequently denied suffering from shoulder pain during and after his active service. She acknowledged that the Veteran had submitted information regarding his active service and the stress that would result from that service. However, she noted that while these high impact circumstances “can lead to ‘acute’ injuries . . . there is no medical evidence that ‘impact’ from high speed boats causes injuries to upper extremities.” There is no other competent evidence regarding a nexus between the Veteran’s current disability and his active service. The only other such evidence establishing this link comes from the Veteran himself. However, resolving the etiology of musculoskeletal disabilities requires specialized medical knowledge or training, and the Veteran’s statements as to these matters are not considered competent. Further, such statements are in contrast to the Veteran’s post-service records from 2007 in which he denied suffering from any left shoulder pain. In summary, the competent evidence of record does not indicate that any current left shoulder disability is related to the Veteran’s active service. There is no doubt to be resolved, and the Veteran’s claim for service connection for a left shoulder disability is denied. 2. Entitlement to service connection for degenerative disc disease is denied. An August 2017 VA examination indicated that the Veteran now suffers from degenerative disc disease, a diagnosis consistent with other medical records. The current disability criterion is met. The second requirement for service connection is that the Veteran must have suffered in-service from an injury, a disease, or event. Here, the Veteran contends that he suffered back pain in service due to the repetitive and harsh impacts of his Coast Guard vessel crashing into waves for nearly 1300 underway hours. The Veteran contends that these underway hours with the Coast Guard were the primary cause of his current lower back pain. Though the Veteran’s service treatment records are silent as to any significant lower back injuries, the Veteran is competent to testify as to events that a lay person is able to perceive. In this instance, the Veteran is competent to testify that they experienced nearly 1300 underway hours on a variety of Coast Guard vessels, and that he suffered from back pain during service, even if he did not seek treatment for that pain. As such, the second requirement for service connection is met. The final requirement for service connection is that a nexus exists between the Veteran’s current disability and the Veteran’s in-service injury, disease, or event. There is no competent evidence in support of this criterion. At an August 2017 VA examination, the examiner concluded that it is less likely than not that the Veteran’s current back disability is related to his active service. She noted that the Veteran consistently denied suffering from back pain on multiple medical histories from both in-service and post-service. She noted that post-service records were silent until back issues until 2011, a time at which the Veteran had worked as a police officer and customs official. She acknowledged the Veteran’s contentions and the evidence he submitted regarding his service aboard boats during his active service. However, the examiner stated that “there is no medical evidence that ‘impact’ causes degenerative disc disease/osteoarthritis,” and that these disabilities are instead the result of aging. As above, this is the only competent evidence regarding a nexus between the Veteran’s current disability and his active service. To the extent that the Veteran contends that such a link exists, determining this issue requires medical knowledge or training which the Veteran is not shown to have. Finally, though the Veteran has a form of arthritis, as there was no evidence of that disability until many years after his service, and as the Veteran denied suffering from back pain on reports of medical history both in and after service, service connection is not warranted on a presumptive or a continuity of symptomatology basis. 3. Entitlement to service connection for bilateral hearing loss is denied. The Veteran underwent a VA examination for his bilateral hearing loss in August 2017. At that examination, in his right ear, the Veteran had auditory thresholds at 40 decibels and above and a speech discrimination score of 86 percent. In his left ear, the Veteran had a speech discrimination score of 92 percent. As such, the Veteran meets the criteria for bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. The second requirement for service connection is that the Veteran must have suffered in-service from an injury, a disease, or event. Here, there is evidence that the Veteran spent over 1200 hours on various Coast Guard vessels for a variety of missions. The Veteran contends that the time he spent on the boat while it was underway caused him to bilateral hearing loss. He contends this is so due to highly noisy environment that he sustained while on the boat. Specifically, he notes that there was high engine noise and environmental noise without adequate ear protection. Here, the Veteran is competent to state that he was subjected to loud noises from the environment and from the engines. As such, the second requirement for service connection is met. The final requirement for service connection is that a nexus exists between the Veteran’s current disability and the Veteran’s in-service injury, disease, or event. The Veteran underwent a VA examination in August 2017; the examiner there determined that it is less likely than not that the Veteran’s bilateral hearing loss is related to his active service. The examiner noted that the Veteran did not have hearing loss issues in any of the examinations that he underwent during service nor on his exit from service. The examiner noted that the Veteran did not have a “statistically significant shift in thresholds for the worse when comparing entrance to exit audiograms and when comparing entrance audiograms” to one completed in 2009. The examiner cited medical literature, noting that it is unlikely that delayed onset hearing loss exists following exposure to noise. As above, the only evidence in support of the Veteran’s claim comes from his contentions themselves. On this point, however, the Veteran has been inconsistent. Notably, private treatment records from 2016 reflect that the Veteran complained of a sudden onset of hearing loss in 2014. Further, none of those private treatment records related his hearing loss at that time to his active service or to his noise exposure therein. Absent competent and credible evidence of a nexus between the Veteran’s current disability and his active service, or credible evidence of a continuity of symptomatology, the Veteran’s claim for service connection for bilateral hearing loss must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. In its previous remand, the Board instructed that a VA examiner opine as to whether the Veteran’s claimed right knee disability is proximately due to, the result of, or aggravated by his service-connected left knee disability. Though the Veteran underwent an examination in August 2017, the examiner did not comment on the Veteran’s secondary service connection claim, as she did not find that the Veteran was currently suffering from a right knee disability. However, as medical evidence shows that the Veteran was diagnosed as suffering from crepitus during the appeal period, the current disability criterion must be considered met. Upon remand, an opinion as to whether any right knee disability identified during the entire appeal period is secondary to the Veteran’s left knee disability must be obtained. The matters are REMANDED for the following action: Obtain an opinion from an appropriate examiner as to whether any right knee disability identified during the appeal period (i.e., since 2009) is proximately due to, the result of, or aggravated by the Veteran’s service-connected left knee disability. If the examiner determines that such an opinion cannot be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. P. Jochem, Associate Counsel