Citation Nr: 18117241 Decision Date: 07/10/18 Archive Date: 07/10/18 DOCKET NO. 11-21 883 DATE: July 10, 2018 ORDER Service connection for a low back disorder is granted. Service connection for a bilateral knee disorder is denied. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran had active service from November 1968 to November 1970. He also had service in the Coast Guard Reserve, with periods of active (ACDUTRA) and inactive duty for training (INACDUTRA) from September 1990 to June 2009. 2. A low back injury is shown during a period of INACDUTRA; the current low back disorder is etiologically related to service. 3. A pre-existing bilateral knee disorder was not aggravated by service. 4. Hearing loss is etiologically related to acoustic trauma sustained in active service. 5. Tinnitus is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. A low back disorder was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 2. A bilateral knee disorder was not incurred in or caused by or permanently aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 3. Bilateral hearing loss was incurred in service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. Tinnitus was incurred in service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. Low Back Disorder First, the Veteran has been diagnosed with degenerative disc disease (DDD) of the lumbar spine. This was confirmed in a February 2013 VA examination, and originally found during private diagnostic tests in September 2008. As such, the first element of service connection is satisfied. Next, as to in-service incurrence, the Veteran was treated on one occasion for complaints of back pain in July 1970 and prescribed a muscle relaxer. On his separation examination, he indicated that he had experienced back problems in service but upon examination was noted to have no back problems at that time. Therefore, a chronic low back disorder was not shown during his first period of active duty. The next incident of a low back injury or treatment occurred during a period of INACDUTRA in August 2008 following a physical fitness test and he was hospitalized for three days. During a June 2009 period of INACDUTRA, he complained of back pain that he reported began when bending over to pull on his boots. As both are injuries to his low back and have been shown in personnel and medical records, the second element of service connection is met. As to the final element of direct service connection – medical nexus – the evidence weighs both for and against the claim. In support of the claim, the Veteran submitted a May 2014 letter from his treating physician who found that the Veteran’s back, shoulder, and knee disorders rendered him unable to function in day to day life and were as likely as not related to service; however, the clinician provided no rationale. In a May 2017 opinion, the clinician stated that the Veteran’s service time and vertebral trauma caused his current vertebral degeneration and persistent gait and balance disturbances but did not explain why she found his current disorder to be caused by his active service. In a March 2018 opinion, the clinician reflected that the Veteran’s back pain was more likely than not related to trauma incurred in service because the history of the condition was consistent with the current diagnosis, and further that his history of injuries while serving in the military indicated his current back condition was aggravated by the service connected injuries. In a June 2014 letter, the Veteran’s primary care physician noted that chronic back pain and polyarthralgia were as likely as not to have been caused by service but provided no rationale for this conclusion. In a February 2018 letter, the same primary care physician described an in-service incident where the Veteran injured his knee, and then mentioned he felt knee and back pain from the incident thereafter. He then concluded that the Veteran’s knee and back pain were, more likely than not, related to the trauma he endured while in service, and the amount trauma was enough to explain spinal disc herniation. Finally, the Veteran’s chiropractor submitted a letter in June 2017, stating that the Veteran’s current back pain was as “probably as not connected to his military service,” presumably, meaning probably as likely as not related. The chiropractor did not provide any rationale for his statement, however. In a subsequent March 2018 opinion from the same chiropractor, he described that he had treated the Veteran since 2008 for a primary complaint of severe lower back pain and spasms which had occurred after a conditioning run for the Coast Guard. The chiropractor stated he continued treating the Veteran, at least a dozen times since, for symptoms consistent with and more likely than not related to the claimed injury from Coast Guard duties. In contrast, multiple VA examiners have found that the Veteran’s low back disorder is not related to service. Specifically, a January 2010 VA examiner and accompanying February 2010 addendum opinion found that the mild disc disease was not related to any injury in service, and that there were no scientific findings recently to corroborate the Veteran’s recurrent muscle problems with his back. A February 2013 VA examiner opined that there were no severe low back injuries during the Veteran’s 1968-1970 tour of service that could have caused any chronicity afterwards. However, the examiner did not address whether the two INACDUTRA injuries caused the current disability. The April 2013 VA addendum opinion found that the evidence did not show a back injury severe enough in service to cause any chronic disorder, and that the Veteran’s back injury clearly and unmistakably existed prior to service. However, the evidence does not support a finding of a preexisting low back disorder. While there were medical records dated from 2006, these are hospital records for an appendectomy. The records even state that the pain from his appendicitis did not radiate to his back. As such, the evidence does not clearly and unmistakably show that he had a preexisting low back disorder. An October 2016 VA examiner found that there were no records of a significant back injury or recurrent back complaint in service, with no evidence supporting chronicity since separation and no ongoing back issues until recently. However, the examiner did not mention the August 2008 injury while on INACDUTRA or the June 2009 follow-up complaints, and the ongoing physical therapy and chiropractic notes since 2008. The examiner also found no diagnosis of a thoracolumbar spine disorder, which is inconsistent with the 2008 diagnosis of DDD of the lumbar spine. Finally, an October 2017 opinion found no back disabilities related to the incidents in service discussed above, and thus concluded that the Veteran’s current back problems were less likely than not related to service. However, the reviewing clinician noted that the Veteran’s October 2008 separation examination did not show any service-connected back injuries but this opinion fails to take into account the June 2009 INACDUTRA injury which occurred after the separation examination, but before separation from service. The evidence weighs for and against the claim which puts the issue into equipoise. Since his INACDUTRA injuries, the Veteran has sought treatment from private rather than VA providers for much of his care. As such, some of the clinicians have been treating him since the time of his injuries, or at least for many years. While earlier private opinions did not provide requisite rationales, subsequent submissions have attempted to provide a basis for the opinions. While the language utilized did not always track the more-likely-than-not legal standard required for service connection, the clinicians attempted to show that the Veteran’s current disability and symptoms resulted from in-service incurrences, and provided years of treatment notes to support their opinions. Therefore, reading the evidence in a favorable light, it is at least in equipoise and the appeal is granted. Bilateral Knee Disorder In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Pursuant to 38 U.S.C. § 1111, and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA’s General Counsel reasoned that § 3.306(b) properly implemented 38 U.S.C. § 1153, which provided that a preexisting injury or disease would be presumed to have been aggravated in service in cases where there was an increase in disability during service; however, the requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and did not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111. 38 U.S.C. § 1111, as in this case, requires VA to bear the burden of showing the absence of aggravation. Moreover, “temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.” Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Residuals of knee surgery are not chronic diseases under 38 C.F.R. §§ 3.307 and 3.309(a); therefore, analysis under continuity of symptomatology is not for application. 38 C.F.R. §§ 3.307, 3.309(a). Similarly, at the time of this appeal, the Veteran was not service connected for any disability, and he has not claimed that his bilateral knee disorder was secondary to any disability; therefore, secondary service connection is not for application. The evidence is suggestive of a preexisting disorder, but only for periods of service of INACDUTRA. As such, aggravation of a preexisting disorder still applies, but no presumption of soundness attaches. The Veteran does not contend, nor does the evidence show, that direct service connection is warranted. Rather, he asserts that his bilateral knee disorder was aggravated by an in-service incurrence. First, there were no complaints of, treatment for, or a diagnosis of a knee injury during the Veteran’s first period of active duty. Therefore, no chronic knee disorder was shown at separation. Next, the Veteran injured his knees during civilian employment apparently in the 1990s. The injury required a right partial meniscectomy and chondroplasty, and a left knee arthroscopic chondroplasty. It is unclear the exact date the injury occurred; however, the surgical records for the right knee surgery are from October 1995 and June 1994 for the left knee surgery. The October 2008 separation examination noted arthroscopic surgery over 20 years previous but it was unclear if this referred to the two surgeries above, and imprecisely approximated the date of the surgeries, or whether he had separate knee surgeries. Nonetheless, this constitutes a preexisting condition. He has claimed events in service have aggravated this disability, rather than that his bilateral knee disorder was originally caused by service. Next, the Veteran has claimed he aggravated his knees due to an injury in service. As noted, his STRs are silent for a knee injury during his first period of active service, but he has described an incident while with the Coast Guard Reserve, in which he injured his knees during a naval search and rescue and they have hurt since. His STRs are silent for this injury, but he has described it consistently in both two Board hearings as well as to examiners throughout the appeals period. The injury is consistent with his service. However, the medical evidence weighs against a permanently worsened of his civilian knee injury. First, during his November 2016 VA examination, the examiner found that while the Veteran complained of bilateral pain, his knees were found to be mostly benign throughout the examination. His November 2015 VA examination examiner similarly found no joint instability or limited range of motion. As such, the medical evidence does not support that his knee disorder had worsened. The November 2016 VA examiner found that the evidence did not suggest aggravation of knee pathology by service and that it was more likely than not that the knee pathology was related to a non-active duty incident. The examiner noted that the bilateral knee disorder was less likely than not aggravated by service, as his October 2010 separation examination only noted that he had bilateral knee arthroscopies years before and they were “doing well.” Finally, an October 2017 medical opinion reviewed all evidence and found that medical records did not support the contention that the Veteran’s knee disability was aggravated by his service. In contrast to these opinions, the Veteran submitted several private medical opinions connecting his bilateral knee disorder to service. In a February 2018 letter, his primary care provider attributed the Veteran’s knee problems to the incident on the boat. He opined that the ongoing knee pain was more likely than not related to trauma he endured serving in the Coast Guard and the amount of trauma was enough to explain the degeneration of knee menisci. However, the clinician did not consider the civilian workplace incident that subsequently required surgery. Therefore, it is assigned less probative value. Next, a March 2018 letter from a private physician stated that the Veteran’s bilateral knee disorder was due to trauma in service, because the history of the disorder was consistent with the current diagnosis. She stated his progressive degenerative destruction of his patellar knees was caused by forceful trauma. The clinician did not address aggravation although it has been established his bilateral knee disorder predated the injury during service. Further, unlike the VA examiners, who performed diagnostic tests to determine the severity of the Veteran’s knee disability, she did not explain how the Veteran’s disorder had permanently worsened. In a March 2018 from the Veteran’s chiropractor attributed the Veteran’s knee disorder to the conditioning run in which he injured his back, discussed above. The chiropractor described the incident, consistent with earlier recollections, and stated that he had treated the Veteran for intermittent knee pain. He concluded that the Veteran’s bilateral knee disorder was more likely related to service due to this incident, and attached years of treatment notes. While making mention of the knee, the injury described did not mention the knees or legs, only his back. The chiropractor made no attempts to explain how a back injury in service aggravated his bilateral knee disorder. As such, the rationale and opinion is assigned less probative value. Based on the medical evidence, the Board places more probative value on the VA opinions as they were based on an accurate factual premise, considered the Veteran’s civilian knee injury and subsequent surgery, and provided a rationale that was consistent with the evidence. The Board finds that the preponderance of the medical evidence weighs against the claim. The Board has considered the Veteran’s lay statements, and those submitted as statements in support, that his bilateral knee disorder was aggravated by an in-service incurrence. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. As such, he is competent to report that his bilateral knee disorder causes him near constant pain, and that he has trouble standing for long period of time, or walking long distances because of pain in his knees, as he has stated in his two Board hearings and in multiple statements in support. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to whether a specific in-service incurrence is the cause of an increase in his lay observable symptoms due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the various VA examinations, and VA addendum opinions, the medical evidence, and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings and medical opinions than to his statements. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Bilateral Hearing Loss and Tinnitus The Veteran claims he has bilateral hearing loss and tinnitus resulting from his active duty service. As the analysis is similar, the issues will be discussed together. Hearing loss and tinnitus are recognized by VA as chronic diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). First, diagnoses of bilateral hearing loss and tinnitus were confirmed in an April 2017 VA examination. His speech recognition scores using the Maryland CNC test were less than 94 percent in each ear. Moreover, the Veteran has provided competent lay statements pertaining to the on-going existence of hearing loss and tinnitus and their related symptomatology. Specifically, he has indicated to his private physician November 2017 in that he has had some trouble hearing and heard ringing in his ears since basic training shooting in 1968, and also to his April 2017 VA examiner that during 1968-1970 his in service MOS was vehicle transportation, which included exposure to loud noise via explosions, guns, power tools, heavy equipment, diesel motors and aircraft. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus). Thus, the first element of service connection has been met. Next, the evidence supports a finding of in-service acoustic trauma. As noted above, he reported trouble hearing and a ringing in his ears from basic training shooting in 1968. A veteran is competent to report that which he perceives through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, his statements are corroborated by the service records which denote his duty assignments. In a December 2017 letter, the Veteran claimed to have been ordered to shoot M16 rifles at the shooting range during basic training without hearing protection. His DD-214 lists Expert M16 as a decoration. Thus, his descriptions of the in-service events are consistent with the nature of his service, and his reports are unvarying throughout the record. Accordingly, the second element (in-service incurrence) has been met. Finally, as to continuity, the Veteran has indicated that he has experienced hearing loss and tinnitus since service. The April 2017 VA examiner recorded that the Veteran’s hearing problems began 4-5 years prior, however he submitted a letter in December 2017 stating that this was a mistake, and he had told the examiner that his hearing loss and the ringing in his ears began in service. He reported that his hearing loss began in service to his physician in November 2017. While there is an absence of complaints of or treatment for hearing loss or tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of hearing loss and tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss and tinnitus since service; therefore, hearing loss and tinnitus are presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss and tinnitus since service separation, all other service connection theories are rendered moot. With respect to all claims, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND A remand is required prior to adjudication of the claim for a TDIU. Service connection for a low back disorder, bilateral hearing loss, and tinnitus have been granted pursuant to the Board’s decision above, but the disabilities have not yet been rated. As the assigned rating would affect the Veteran’s potential entitlement to a TDIU under 38 C.F.R. § 4.16(a), the claim for TDIU is not yet ripe for adjudication and is remanded for re-adjudication pending the assignment of ratings for his now service-connected disabilities. The matter is REMANDED for the following actions: 1. The RO should take any additional development as deemed necessary to address the claim for a TDIU. 2. After all development has been completed, the RO should re-adjudicate entitlement to a TDIU pending the assignment of ratings for the Veteran’s service-connected low back disorder, bilateral hearing loss, and tinnitus. If the benefits sought are not granted, the RO should furnish the Veteran and his representative with a supplemental statement of the case, and should give him a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel