Citation Nr: 18156258 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 12-31 245A DATE: December 7, 2018 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension is the result of herbicide agent exposure in service. 2. The Veteran’s back disability was incurred in service. 3. The Veteran’s right knee disability was not incurred during active duty and is not otherwise related to military service; degenerative arthritis of the right knee did not manifest to a compensable degree within one year of separation from service. 4. The Veteran’s left knee disability was not incurred during active duty and is not otherwise related to military service; degenerative arthritis of the left knee did not manifest to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 to August 1969, to include service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran presented testimony before the undersigned Veterans Law Judge. In December 2017, the Board remanded the claims for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including hypertension and arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide exposure do not include hypertension. 38 C.F.R. § 3.309(e), Note 2. Even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for hypertension. Here, the Veteran has a current diagnosis of hypertension. See March 2018 VA examination report. Accordingly, the first element of service connection is met. Turning to the second element, in-service incurrence of a disease or injury, the Veteran does not report, nor do his service treatment records (STRs) identify any complaints, treatment for, or diagnosis of, hypertension or high blood pressure during service. However, an injury in the form of exposure to herbicide agents during his service in Vietnam is presumed. As such, element two is also met Regarding the last element, nexus, the only competent opinion of record is in favor of the claim. Specifically, the March 2018 VA examiner opined that the Veteran’s hypertension was at least as likely as not the result of exposure to herbicide agents in service based on reported treatment at a relatively young age in the absence of other risk factors for hypertension, as well as current medical research indicating a significant association and increased risk of hypertension in veterans with a history of herbicide agent exposure. This opinion is highly probative, as it considers the Veteran’s pertinent medical history and provides a thorough rationale with supporting data. Accordingly, as all the elements for service connection have been met, the benefit sought on appeal is granted. 2. Entitlement to service connection for a back disability. Here, the Veteran is currently diagnosed with chronic lumbar strain. See March 2018 VA examination report. While his STRs are negative for findings or symptoms of a back disability, the Veteran competently and credibly presented testimony as to a back injury in service, in which a falling jeep bumped him and he fell on his back, in addition to back injuries coincident with his occupational duties in service. Affording him the benefit of the doubt, the first and second elements of service connection are established. Regarding the last element, nexus, the only competent opinion of record is in favor of the claim. (In this regard, the March 2015 VA opinion against the claim is inadequate for rating purposes). Specifically, the March 2018 VA examiner opined that the Veteran’s chronic lumbar strain was at least as likely as not incurred in service, based on his competent and credible reports of back pain since service, as well his current reports of back pain as being of the same nature as those since service. This opinion is highly probative, as it was rendered based on an interview and physical examination of the Veteran, considers pertinent medical history, and contains a detailed rationale. Therefore, since all the elements for service connection have been met, the benefit sought on appeal is granted. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. The evidence of a current knee disability is not in dispute, as the Veteran has been diagnosed with patellofemoral pain syndrome and degenerative arthritis in both the right and left knee. See March 2018 VA examination report. Thus, the first element of service connection is satisfied. Turning to the second element, in-service incurrence of a disease or injury, the Veteran’s STRs do not identify any complaints, treatment for, or diagnosis of a knee disability or symptoms indicative of the same. At service separation in August 1969, he specifically denied arthritis, bursitis, bone or joint deformity, and a trick or locked knee. Clinical evaluation of his lower extremities was normal. However, the Veteran competently and credibly testified as to in-service knee injuries, including a twisted right knee. Affording him the benefit of the doubt, element two is also established. Regarding the last element, nexus, the only competent opinion of record is against the claim. (In this regard, the March 2015 VA opinion against the claim is inadequate for rating purposes). Specifically, the March 2018 VA examiner opined that it was less likely than not that the Veteran’s knee disabilities were caused by or related to service. In support of her opinion, the examiner, who acknowledged consideration of the Veteran’s history of knee pain in service, as well as his assertions of continued symptomology since, stated that it was not due to any specific injury or incident in service. The examiner explained that the Veteran’s knee pain was symmetric based on his reported pain symptoms and x-ray findings. Thus, per the examiner, if he had a traumatic injury to the right knee in service, such as a twisted knee, one would expect “asymmetric symptoms (being worse on the right) and even asymmetric findings on x-ray and/or asymmetric active range of motion.” Moreover, and critically, the examiner highlighted the fact that the Veteran reported to her that he was not sure when the knee pain began. She also noted that post-service, he worked at other physical jobs much longer than he served in the military, and remarked that his x-ray findings were very common in the general population within his age group. This opinion is highly probative, as it was rendered based on an interview and physical examination of the Veteran, considers the pertinent medical history, and contains a detailed rationale. There is no competent opinion to the contrary. To the extent that the Veteran and his wife both assert that his right and left knee disabilities are the result of his active duty service, the Board finds that while both individuals are competent to report observed symptomatology such as pain, they are not competent to opine as to the cause of the Veteran’s knee disabilities, as such a determination is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, there is no evidence that the Veteran’s degenerative arthritis manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. Nor is there any competent and credible evidence of an in-service manifestation of arthritis to allow for service connection based on continuity of symptomatology. See Walker, supra. Accordingly, the preponderance of the evidence is against the claim of service connection for a right and left knee disability. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. REASONS FOR REMAND 5. Entitlement to service connection for bilateral hearing loss is remanded. Remand is necessary because the January 2018 VA examiner’s opinion is inadequate. The examiner opined that was it less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of his military service. In support of his opinion, he relied on the presence of normal hearing at service separation with no significant threshold shifts. He also refuted the medical plausibility of delayed onset hearing loss based on an Institute of Medicine (IOM) study in 2006, indicating “that there was no scientific support for delayed onset noise-induced hearing loss,” and the United States Court of Appeals for Veterans Claims recently indicated that medical opinions citing this IOM report in this manner appear to misstate or incompletely contemplate the IOM report’s pertinent conclusions. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Thus, an addendum opinion is warranted on remand. The matter is REMANDED for the following action: Refer the claims file to the March 2018 VA audiologist for preparation of an addendum opinion. The entire claims file should be made available to, and reviewed by the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss had its onset in, or is otherwise related to service. In addressing this question, please discuss: (a) the Veteran’s statements regarding in-service noise exposure without any hearing protection and his assertions of continuous symptomatology since service; (b) the Veteran’s wife’s testimony as to an observed continuous decrease in his hearing since he returned from Vietnam (see Board Hearing Transcript 4-9); (c) the fact that the Veteran’s tinnitus has been attributed to service, and that “an associated hearing loss is usually present” with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems; and (c) the IOM Report on noise exposure in the military (cited as authority in the March 2018 VA examination report), which states that it is “unlikely” that the onset of hearing loss begins years after noise exposure, but also states that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (Emphasis added). Please note that the absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel