Citation Nr: 18154945 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 18-24 649 DATE: December 3, 2018 ORDER Entitlement to service connection for a right knee disability, to include degenerative arthritis, is granted. Entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a right ear hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability, to include degenerative arthritis, is attributable to his active service. 2. The Veteran’s left and right ear hearing loss disabilities are attributable to his active service. 3. The Veteran’s tinnitus is proximately due to his service-connected left and right ear hearing loss disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability, to include degenerative arthritis, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for entitlement to service connection for left and right ear hearing loss disabilities have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1956 to March 1959. Service Connection – Legal Criteria Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. Service Connection – Right Knee Disability The Veteran filed a claim in January 2017 for entitlement to service connection and listed a disability of “knee injuries/right.” On an accompanying statement, it was referenced that the Veteran served as a “Paratrooper with hard landings and impacts.” In an August 2017 statement (accompanying the notice of disagreement (NOD)), it was stated regarding the Veteran’s right knee that the Veteran “feel[s] that his service as a paratrooper was caused/contributed to these injuries.” On the April 2018 VA Form 9, it was stated “knee…injury (paratrooper) impact knees hard landing.” The Veteran’s service treatment records (STRs) and complete personnel records were not able to be obtained. An April 2017 response from the National Personnel Records Center (NPRC) stated “record is fire-related…no STRs or dental records were recovered from the fire.” It was also noted that “all available personnel documents from the Veteran’s reconstructed record have been sent.” The only personnel record of record, beyond the Veteran’s DD 214, was a March 1959 record from the XVIII Airborne Corps that included information largely duplicative of the information contained on the DD 214. The DD214 noted that the Veteran was in the Army and that his branch was “Arty,” presumably an abbreviation for artillery. Also noted for his last duty assignment and major command was “Abn 319th Arty,” with “Abn” presumably being an abbreviation for Airborne. His Specialty Title was listed as “Cook.” The Board notes that in an August 2017 statement it was stated that the Veteran “served in a[n] artillery battery where he part[i]cipa[te]d in live firing [and] explosing…that was his primary [Military Occupational Specialty (MOS)]. Not Food Service.” The DD 214 also noted that the Veteran was awarded the Parachutist Badge. A January 2018 examination request by the Agency of Original Jurisdiction (AOJ) referenced that this award “would indicate the [V]eteran participated in at least 5 parachute jumps.” Turning to the three direct service connection elements, the evidence of record indicated a current right knee disability. In this regard, a January 2017 private medical record from Goshen Medical Center and R.C., PA-C, stated that “[r]ight knee imaging did reveal patellofemoral joint space narrowing and patellar osteophytes.” A December 16, 2016 private medical record contained right knee x-ray results that including as findings what R.C. referenced in January 2017. Also noted was an impression of “mild to moderate degenerative changes right knee.” A February 2018 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) noted a diagnosis of right knee degenerative arthritis, with a date of diagnosis noted of December 16, 2016. With respect to an in-service event, as outlined, the Veteran has contended that his current right knee disability is related to in-service parachute jumps. As discussed, the Veteran’s DD 214 noted award of the Parachutist Badge and the AOJ stated that this indicated that “the [V]eteran participated at least 5 parachute jumps.” As such, the remaining issue is whether the Veteran’s current right knee disability (degenerative arthritis) is related to his active service and the parachute jumps that he completed. As relevant to the issue of nexus, the Veteran was afforded a VA examination in February 2018 and the referenced Knee DBQ was completed by K.T., Nurse Practitioner. Under the medical history section, it was stated regarding onset that the “Veteran reported right knee pain that began during active duty service. He attributed this to frequent parachute jumping.” A separate opinion was provided that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The provided rationale stated in full: “[u]nable to confirm Veteran’s diagnosed right knee disability is at least as likely as not (50 percent or greater probability) incurred in or caused by repeated parachute jumps in service, due to lack of supporting information in claims file.” Upon review, while a negative opinion was provided, the supporting rationale represented, essentially, an inconclusive opinion. The United States Court of Appeals for Veterans Claims (Court) stated in Jones v. Shinseki, 23 Vet. App. 382 (2010) that “[a]n examiner’s conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion.” The Court also stated that “a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity” and that “[f]or example, it is not clear whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit such an opinion, either of which would render the opinion inadequate for resolving the claim.” The Court further stated that VA “must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is ‘based on sufficient facts or data’,” that “[t]herefore, it must be clear, from either the examiner’s statements or the Board decision, that the examiner has indeed considered ‘all procurable and assembled data[]’” and that “[w]hen the record leaves this issue in doubt, it is the Board’s duty to remand for further development.” Applying Jones to the February 2018 VA opinion, such opinion is inadequate. This is because the provided rationale did not adequately explain the inconclusive rationale. While the rationale referenced “lack of supporting information in claims file,” it is not clear from this general statement what specific information was lacking and, per Jones, “whether some additional…information is needed, and possibly available, that would permit…an opinion.” In addition, it is not clear, in accordance with Jones, that “the examiner has indeed considered ‘all procurable and assembled data[]’,” as while STRs were not available, other relevant evidence was of record that was not discussed in the rationale. This included the evidence (both lay and the Veteran’s DD 214) referencing the Veteran’s in-service parachute jumps, as well as the Veteran’s report to the examiner that “right knee pain…began during active duty service. He attributed this to frequent parachute jumping.” Further, as will be discussed below, evidence also included a positive private opinion from R.C. that, essentially, linked the Veteran’s right knee disability to his in-service parachute jumps. As none of this relevant evidence was discussed in the rationale, it is not clear that “the examiner has indeed considered ‘all procurable and assembled data[]’.” Overall, for the reasons outlined, the February 2018 VA opinion is inadequate in accordance with Jones and the Board accordingly affords it low probative value. The remaining evidence of record relating to the issue of nexus includes the referenced private positive opinion from R.C. The opinion stated that “I have been asked to write a letter on behalf of [the Veteran] in regard to chronic bilateral knee pain” and referenced was the right knee imaging previously discussed that indicated degenerative arthritis. The opinion stated that the Veteran “did serve in the military…and…performed numerous parachute jumps with traumatic falls during this time. It is probable his exposure to…traumatic parachute jumps contributed to [the] current issue[].” Upon review, the Board finds that entitlement to service connection for a right knee disability, to include degenerative arthritis, is warranted. As outlined, of record are two medical opinions that addressed whether the Veteran’s right knee disability is related to his active service and in-service parachute jumps. One, the February 2018 VA opinion, has been deemed inadequate and afforded low probative value for the reasons discussed above. The second opinion, from R.C., linked the Veteran’s current right knee disability to his active service. While the provided rationale was not extensive, the opinion referenced the Veteran’s in-service history (“numerous parachute jumps with traumatic falls”) and linked his current right knee disability to such service. The Board notes that this is the only adequate competent opinion addressing whether the Veteran’s right knee disability is related to his active service. Overall, the Board finds this opinion to be the most probative evidence of record as to the issue of whether the Veteran’s right knee disability is related to his active service and that the opinion supports such a relationship. Resolving any reasonable doubt in the Veteran’s favor, entitlement to service connection is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also O’Hare v. Derwinski, 1 Vet. App. 365 (1991) (stating that, as in this case, “[w]here the [STRs] are presumed destroyed…the [Board’s] obligation…to consider carefully the benefit-of-the-doubt rule is heightened”). In sum, the Board finds that the Veteran’s right knee disability, to include degenerative arthritis, is attributable to his active service. The Board accordingly concludes that the criteria for entitlement to service connection for a right knee disability, to include degenerative arthritis, have been met and, to this extent, the Veteran’s claim is therefore granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service Connection – Left and Right Ear Hearing Loss Disabilities The Veteran filed a claim in January 2017 for entitlement to service connection for hearing loss. On an accompanying statement, it was referenced that the Veteran served “in 319 Artill[e]ry expose him to loud explosion.” In an August 2017 statement (accompanying the NOD), it was stated that the Veteran “served in a[n] artillery battery where he part[i]cipa[te]d in live firing [and] explosing where was exposed to loud noises that was his primary MOS. Not Food Service.” On the April 2018 VA Form 9, referenced regarding hearing loss was artillery live firing and explosion noises by guns. With respect to the three direct service connection elements, the evidence of record indicated current left and right ear hearing loss disabilities for VA purposes. See July 2017 and February 2018 Hearing Loss and Tinnitus DBQs; 38 C.F.R. § 3.385 (defining when impaired hearing will be considered a disability for VA purposes). With respect to an in-service event, as noted above, the Veteran’s STRs were not able to be obtained and only one personnel record was obtained. While the Veteran’s Specialty Title was listed as Cook on his DD 214, the Veteran reported that he was exposed to loud noises by way of service in an artillery battery and his service in such battery appears to have been supported by his DD 214. In the March 2018 statement of the case (SOC), the AOJ stated that “[y]our available service records show that you served in an artillery unit with the primary [MOS] of a Cook. As you served in an artillery unit, your noise exposure in service would be conceded.” As such, the AOJ has conceded that the Veteran experienced in-service noise exposure and the Board will accept this favorable finding. As such, the remaining issue is whether the Veteran’s current bilateral hearing loss disability is related to his active service and the in-service noise exposure. As relevant to the issue of nexus, the Veteran was afforded a July 2017 VA examination with an audiologist. The Hearing Loss and Tinnitus DBQ noted that the Veteran reported military noise exposure of “noise from 105-355 guns with no hearing protection in the airborne artillery.” It was also noted that the Veteran reported noise exposure after the military in that he “reported he worked in construction running a jackhammer doing concrete work with no hearing protection.” Opinions were provided that the Veteran’s left and right ear hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The same rationale was provided for both ears, which stated that: Although the Veteran served in the airborne artillery for 3 years, the Veteran[’]s MOS was Food Service which had a low probability for hazardous noise exposure. The Veteran worked for 20 plus years in the cement construction industry operating a jackhammer without the use of hearing protection which has a high probability for hazardous noise exposure. Subsequently, it was noted in an August 2017 statement that the Veteran “work as a welder, never worked concrete construction. These statements were incorrect.” Also submitted was a copy of a membership card that referenced the Veteran as a retired pipefitter that was initiated in 1975. In addition, various VA treatment records referenced the Veteran’s occupation as “[r]etired pipefitter/welder.” The Veteran was afforded another VA examination in February 2018 with an audiologist and a Hearing Loss and Tinnitus DBQ was completed. A section of the DBQ included various unchecked boxes, to include heavy equipment and power tools, in regard to whether the Veteran had been exposed to loud noises recently or post-service, (it was noted that the Veteran rode a motorcycle in the 1960s). Opinions were provided that the Veteran’s left and right ear hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The same rationale was provided for both ears, which stated that “Veteran’s hearing loss claim was denied because the Veteran had worked 20+ years in Cement Construction Industry operating a jackhammer without hearing protection, and had no complaints of hearing loss in service.” Upon review, the Board finds that the July 2017 and February 2018 VA opinions were based on an inadequate factual premise. Specifically, both opinions referenced the Veteran as working for over 20 years in cement construction operating a jackhammer without hearing protection. As noted, however, in an August 2017 statement it was reported that this was not accurate and that the Veteran did not work in concrete construction but worked as a welder. As the negative opinions were therefore based on an inaccurate factual premise regarding the Veteran’s work history, they are afforded limited probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993) (stating that “[a]n opinion based upon an inaccurate factual premise has no probative value”). In addition, with respect to the July 2017 VA opinion, such referenced that “the Veteran[’]s MOS was Food Service which had a low probability for hazardous noise exposure.” As noted above, however, the AOJ stated in the March 2018 SOC that “[a]s you served in an artillery unit, your noise exposure in service would be conceded.” The AOJ therefore conceded noise exposure during the Veteran’s active service beyond that which presumably would have occurred with a Food Service MOS and which the negative July 2017 VA opinion apparently considered. This discrepancy further limits the probative value of the opinion. Also, with respect to the February 2018 opinion’s reference to “no complaints of hearing loss in service,” the Board notes that in-service hearing loss is not required for entitlement to service connection to be granted. See Hensley v. Brown, 5 Vet. App. 155 (1993) (stating that “when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service”). The opinion’s inaccurate suggestion to the contrary further limits the probative value of the opinion. The remaining evidence of record relating to the issue of nexus includes a private positive opinion from R.C. The opinion stated that “I have been asked to write a letter on behalf of [the Veteran] in regard to…decreased hearing involving both ears. Formal audiometry testing has been performed which did confirm hearing loss.” Accompanying the opinion were the results of December 2016 audiometric testing. The opinion stated that the Veteran “did serve in the military as a gunman” and that “[i]t is probable his exposure to loud artillery…contributed to [the] current issue[].” Upon review, the Board finds that entitlement to service connection for left and right ear hearing loss disabilities is warranted. As outlined, of record are three medical opinions that addressed whether the Veteran’s left and right ear hearing loss disabilities are related to his active service. The two VA opinions, from July 2017 and February 2018, have been afforded limited probative value for the reasons discussed above. The third opinion, from R.C., linked the Veteran’s left and right ear hearing loss disabilities to his active service. While the provided rationale was not extensive, the opinion referenced the Veteran’s in-service history (service “as a gunman” and “exposure to loud artillery”) and linked his current left and right ear hearing loss disabilities to such service. Overall, the Board finds this opinion to be the most probative evidence of record as to the issue of whether the Veteran’s left and right ear hearing loss disabilities are related to his active service and that the opinion supports such a relationship. Resolving any reasonable doubt in the Veteran’s favor, entitlement to service connection is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also O’Hare v. Derwinski, 1 Vet. App. 365 (1991). In sum, the Board finds that the Veteran’s left and right ear hearing loss disabilities are attributable to his active service. The Board accordingly concludes that the criteria for entitlement to service connection for left and right ear hearing loss disabilities have been met and, to this extent, the Veteran’s claims are therefore granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service Connection – Tinnitus As noted, the Veteran was afforded VA examinations in July 2017 and February 2018 with audiologists and Hearing Loss and Tinnitus DBQs were completed. Both DBQs noted that the Veteran reported recurrent tinnitus. Both DBQs also stated that “[t]he Veteran has a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.” Entitlement to secondary service connection is warranted for a disability that is proximately due to, or aggravated by, service-connected disability. See 38 C.F.R. § 3.310. As outlined above, the Board has granted entitlement to service connection for left and right ear hearing loss disabilities. Two VA opinions from audiologists indicated, with supporting rationale, that the Veteran’s tinnitus was associated with his hearing loss. The Board notes that there is no competent opinion contrary to the provided conclusion. As such, the Board finds that the Veteran’s tinnitus is proximately due to his service-connected left and right ear hearing loss disabilities. The Board accordingly concludes that the criteria for entitlement to service connection for tinnitus have been met and, to this extent, the Veteran’s claim is therefore granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS FOR REMAND Service Connection – Lumbar Spine Disability Upon review, remand is required to afford the Veteran a new VA examination and obtain a new opinion. The Veteran file a claim in January 2017 for entitlement to service connection for “back/lumbar spine.” Evidence of record indicated a current lumbar spine disability. See February 2018 Back (Thoracolumbar Spine) Conditions DBQ (noting a diagnosis of degenerative arthritis of the spine). The Veteran’s contentions regarding his lumbar spine disability have been, essentially, the same as his contentions for his right knee disability that were outlined above. In contrast to the right knee disability claim, however, the positive January 2017 private opinion from R.C. did not reference the Veteran’s back. The Veteran was afforded a VA examination in February 2018 with K.T. (who also provided the knee examination) and the information and opinion provided was largely similar to the Knee DBQ and opinion discussed above. The Back DBQ stated under the medical history section that the “Veteran reported low back pain that started during active duty. He attributes this to all his jumps since he did numerous parachute jumps. His low back pain continues to worsen.” A separate opinion was provided that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The provided rationale stated in full: “[u]nable to confirm Veteran’s low back disability is at least as likely as not (50 percent or greater probability) incurred in or caused by repeated parachute jumps in service, due to lack of supporting information in claims file. However, Veteran was a parachutist throughout his active duty career.” Upon review of the provided opinion and rationale, the Board finds that it is inadequate pursuant to Jones for essentially the same reasons outlined above regarding the opinion from the same provider that addressed the Veteran’s right knee disability. Specifically, while the rationale referenced “lack of supporting information in claims file,” it is not clear from this general statement what specific information was lacking and, per Jones, “whether some additional…information is needed, and possibly available, that would permit…an opinion.” In addition, it is not clear, in accordance with Jones, that “the examiner has indeed considered ‘all procurable and assembled data[]’,” as while STRs were not available, other relevant evidence was of record that was not discussed in the rationale, specifically the Veteran’s report to the examiner that “low back pain…started during active duty.” As such, remand is required for a new VA examination and opinion, as outlined further in the remand directives below. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, while on remand, outstanding VA treatment records must be obtained (the most recent VA treatment records of record are from February 2018). Further, the Veteran listed on his January 2017 claim form (VA Form 21-526) that he was treated at Goshen Medical Center. As noted, a January 2017 opinion from R.C. from Goshen Medical Center is of record. The Veteran also submitted in March 2017 a VA Form 21-4142a (General Release for Medical Provider Information to [VA]) and listed as a provider Goshen Medical Center. VA attempted to obtain records from this provider and was informed in May 2017 that the Veteran was not a patient. The information provided to Goshen Medical Center, however, included an incorrect name for the Veteran. Such may have contributed to the lack of returned records, in light of the fact that evidence of record included medical records for the Veteran from this provider that noted a different name than was listed on the records request. It does not appear that the Veteran was informed of the inability of VA to obtain records from this provider. See 38 C.F.R. § 3.159(e). As such, and in light of the prior attempt involving an incorrect name, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records from Goshen Medical Center, or complete a release for such providers (his March 2017 release is now expired); if any releases are returned, VA must attempt to obtain the identified records. Also, VA treatment records referenced records from Goshen Medical Center as being scanned into the Veteran’s medical record. See February 9, 2016 and March 29, 2017 Records. These potentially relevant records are in VA’s possession and must be associated with the Veteran’s electronic claims file on remand. The matter is REMANDED for the following action: 1. Obtain outstanding VA treatment records from February 2018. 2. Associate with the Veteran’s electronic claims file the Goshen Medical Center records referenced as being scanned into the Veteran’s medical records in February 9, 2016 and March 29, 2017 VA treatment records. 3. Contact the Veteran and request that he either provides any outstanding relevant private treatment records, to include any records from Goshen Medical Center, or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. 4. Afford the Veteran a VA examination with respect to his lumbar spine disability claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any lumbar spine disability, to include degenerative arthritis, had its onset during active service or is caused or aggravated by any in-service event or injury, to include multiple in-service parachute jumps. While review of the entire claims folder is required, attention is invited to the following: (a.) The medical history section of the January 2018 Back DBQ that stated that the “Veteran reported low back pain that started during active duty. He attributes this to all his jumps since he did numerous parachute jumps. His low back pain continues to worsen.” (b.) The January 2017 private opinion from R.C., PA-C, that, essentially, linked a right knee disability to the Veteran’s active service and the parachute jumps that the Veteran completed. (Continued on the next page)   For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel