Citation Nr: 18160792 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-47 987 DATE: December 27, 2018 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for diabetes mellitus type II (DM) is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. A low back disability is etiologically related to the Veteran’s active service. 2. A right knee disability is etiologically related to the Veteran’s active service. 3. A left knee disability is etiologically related to the Veteran’s active service. 4. DM clearly and unmistakably existed prior to the Veteran’s last period of active service, and clearly and unmistakably was not aggravated by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for service connection for DM have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1992 to October 1992, from January 2003 to March 2004, and from June 2012 to June 2013. The Veteran’s decorations for his active service include a Combat Action Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2015 and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Service Connection 1. Low Back, and Right and Left Knee Disabilities The Veteran has asserted that his low back, and right and left knee disabilities are related to his active service, to include as due to combat during his active service. Specifically, he reported that he injured his back and knees when falling off a truck while wearing his weapon on his back. Additionally, the Veteran stated that he injured his back and knees while engaging in combat. In that regard, the Veteran stated that his back and knees were injured during a mortar attack. The Veteran’s DD Form 214 shows service in Afghanistan and Kyrgyzstan, as well as service in support of Operation Enduring Freedom. The Veteran’s military occupational specialties (MOSs) during his active service included carpentry and masonry specialist, and wheeled vehicle mechanic. As noted above, the Veteran was awarded a Combat Action Badge. That citation is accepted as conclusive evidence of participation in combat operations. The Veteran reported that during his active service he experienced mortar fire, and injured his knees and low back when falling from a truck. The Board notes that in the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C. § 1154 (b) (2012); Libertine v. Brown, 9 Vet. App. 521 (1996); Collette v. Brown, 82 F. 3d. 389 (Fed. Cir. 1996). The Board finds that the Veteran’s reports of injuring his low back and knees during combat operations are consistent with the facts and circumstances of his service and concedes that the in-service injuries occurred as described. Service treatment records (STRs) documented that the Veteran was treated for low back, and right and left knee pain during active service. A February 2004 report of medical history notes the Veteran complained of recurrent neck or back pain. In January 2013, the Veteran complained of back and knee pain after stepping off a vehicle backwards with his weapon slung on his back. He reported immediate pain in his right knee and low back. A February 2013 STR indicates the Veteran was diagnosed with lower back sprain and localized knee pain. The Veteran was afforded VA examinations for his back and knees in July 2015. At that time, the Veteran reported that he had experienced back pain since injuring his back during active service. He further reported that he had experienced knee pain since being “blown off a truck” in 2012. The examiner diagnosed lumbosacral strain and X-rays revealed thoracolumbar spine arthritis. The examiner also diagnosed right and left knee arthritis, and right and left knee patellofemoral pain syndrome. The VA examiner opined that the Veteran’s back disability was less likely incurred in or caused by his military service because the Veteran had mild arthritis with mechanical symptoms that were unlikely to be related to an acute inflammatory event in the remote past. The VA examiner opined that the Veteran’s right and left knee disabilities were less likely than note incurred in or caused by his military service because the Veteran had a chronic degenerative knee condition unlikely to be caused by trauma in the past. The Board finds the VA medical opinions of record inadequate for adjudication purposes. In this regard, the VA examiners failed to adequately consider the Veteran’s combat experiences during active service. Additionally, the examiners failed to adequately consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. As the medical opinions are inadequate, they cannot serve as the basis for a denial of entitlement to service connection. Lay 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify the circumstances of his combat experiences in-service and when he first experienced symptoms of back and knee pain, and his statements have been found credible. In sum, the Board has conceded that the Veteran injured his back and knees while participating in combat operations during active service. The Veteran has current diagnoses of right and left knee arthritis, and thoracolumbar spine arthritis. Further, there is no adequate medical opinion against the claims. Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for a low back disability, and right and left knee disabilities is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a low back disability, and right and left disabilities is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. DM The Veteran has asserted that his DM is related to his active service. A review of the record shows that an entrance examination for the Veteran’s June 2012 to June 2013 period of active service is not of record and is not available for review. However, a June 2012 pre-deployment health assessment was available for review. At that time, it was noted that the Veteran had a history of gout without occurrence in 10 years. Moreover, it was noted that all other findings were normal. As such, the presumption of soundness attaches and the burden is on VA to rebut that presumption. In order for the presumption of soundness to be rebutted, there must be both clear and unmistakable evidence that the disability pre-existed service and clear and unmistakable evidence that the disability was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). In July 2015, the Veteran was afforded a VA examination. At that time, the examiner noted the Veteran was diagnosed with diabetes mellitus type II around May 2012, per his civilian medical notes. The examiner stated that he was unaware of an earlier diagnosis date. The examiner noted that a July 2015 VA treatment record indicted no diabetic retinopathy, and that the Veteran had normal estimated glomerular filtration rate (eGFR) and no protein in his urinalysis. The examiner opined that the Veteran’s DM clearly and unmistakably existed prior to the Veteran’s last period of active service. In that regard, the examiner noted a diagnosis date of May 2012, prior to his June 2012 entry into his last period of service. The examiner also opined that the Veteran’s DM was not aggravated beyond that expected with natural progression by his active service. In that regard, the examiner noted the Veteran’s DM was better controlled at that time than it was in the past. Therefore, there was no evidence to suggest a worsening of his DM. The Board finds that the July 2015 VA examination and opinion report is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there has not been any competent medical evidence submitted that contradicts the findings of the July 2015 VA examiner. Therefore, the July 2015 VA examination and opinion report is the most probative evidence of record. While the Veteran has asserted that his DM is related to his active service and laypersons are competent to report on observable symptomatology, the Board finds that the Veteran is not competent to provide a medical opinion regarding causation or aggravation of a disease process such as DM. In this regard, such an opinion requires medical knowledge, medical testing, and medical expertise that are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an opinion in this case. In sum, the Veteran’s DM clearly and unmistakably existed prior to his period of service, and clearly and unmistakably was not aggravated by service. Accordingly, the presumption of soundness is rebutted. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for DM is not warranted. 38 U.S.C. § 5107 (b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Increased Rating – Bilateral Hearing Loss Disability The Veteran was most recently afforded a VA audiological evaluation in June 2015. In an August 2016 VA treatment record, it was indicated that the Veteran’s bilateral hearing loss disability had worsened since his VA examination. Specifically, the Veteran reported further decreased hearing acuity. As the above evidence indicates a possible worsening of that the Veteran’s hearing loss since his last VA evaluation of such, an additional examination should be afforded to gauge the current level of severity of his disability. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiological evaluation by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected bilateral hearing loss disability. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 3. Confirm that the VA examination report comports with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel