Citation Nr: 19106962 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-42 657 DATE: January 29, 2019 ORDER Service connection for a back condition is granted. Service connection for a right knee and lower leg condition is granted. Service connection for a left knee and lower leg condition is granted. Service connection for a right wrist condition is denied. Service connection for bilateral hearing loss is denied. REMANDED Service connection for a right shoulder and arm is remanded. Service connection for a left shoulder and arm is remanded. Service connection for a left wrist condition is remanded. Service connection for migraine headaches is remanded. FINDINGS OF FACTS 1. The Veteran has a current diagnosis of degenerative arthritis of the spine, and he manifested continuous symptomatology since separation of service. 2. The Veteran has a current diagnosis of derangement of the right knee, and he manifested continuous symptomatology since separation of service. 3. The Veteran has a current diagnosis of derangement of the left knee, and he manifested continuous symptomatology since separation of service. 4. A right wrist disability was not shown during active service or at any time thereafter. 5. The Veteran does not have a hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.309. 2. The criteria for service connection for a right knee and lower leg condition have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.309. 3. The criteria for service connection for a left knee and lower leg condition have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.309. 4. The criteria for service connection for a right wrist condition are not met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a). 5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2004 to September 2008. These matters come before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Los Angeles, California. Service Connection Service connection will generally be awarded for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table decision). For the chronic diseases listed in 38 C.F.R. § 3.309 (a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When chronicity or continuity of symptoms is shown, evidence of a medical nexus or causal link to service is not required to establish service connection. Walker, 708 F.3d at 1338-39; 38 C.F.R. § 3.303 (b). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for certain diseases, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id. To establish secondary service connection based on aggravation, the evidence must show an increase in severity of a disease or injury beyond a medically established baseline which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310 (b). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s treatment records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) the 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Service connection for a back condition is granted. The Veteran contends he is entitled to service connection for a back disorder. In a July 2015 notice of disagreement, the Veteran recalled carrying ruck sacks for miles that were over 50 pounds. The Veteran’s service treatment records are silent for recurrent back pain or recurrent back symptomatology. However, the Board observes a document in which the Veteran acknowledged that one of his occupational hazards included carrying heavy equipment and potential muscle strains of the back. A back examination dated August 2014 in which imaging of the lumbar spine was completed. The examiner concluded the Veteran exhibited right central protrusions at L4-5 and L5-S1 with moderate central canal narrowing results at L4-5. His medical history included pain for several years in which the Veteran reported pain after an injury from lifting and moving equipment containers while he was in the marines. The Veteran also reported he treated his condition with nonsteroidal anti-inflammatory drugs and never sought physical therapy. A March 2015 medical disability questionnaire is silent for a medical opinion; however, a diagnosis of lumbar stenosis and a herniated lumbar disc with chronic pain and myopathy are noted. Degenerative disc disease and radiculopathy were also noted. The Veteran submitted a positive medical opinion dated June 2016. The examiner noted the Veteran had been under his care since December 2014. The Veteran’s symptoms included low back pain, which was noted was claimed as a result of injuries sustained during his military service. The examiner noted a review of the Veteran’s orthopedic evaluation in addition to imaging was completed. The examiner found it was more likely than not the Veteran’s conditions as presented in both his orthopedic evaluation and from the imaging could be reasonably assumed as being acute flare-ups of a chronic condition that began from an injury previously sustained during the Veteran’s active service. The Board finds the weight of the evidence indicates it is at least as likely as not that the Veteran’s back condition is related to his active service, and service connection for a back disability is granted. 2. Service connection for a right knee and lower leg condition is granted. 3. Service connection for a left knee and lower leg condition is granted. The Veteran contends he is entitled to service connection for a right and left knee and lower leg condition. In a July 2015 notice of disagreement, the Veteran detailed how he believes that carrying his ruck sack, which weighed over 50 pounds, for miles resulted in his bilateral knee problems. The Veteran’s service treatment records are silent for recurrent right or left knee pain or recurrent right or left knee symptomatology. A March 2015 medical disability questionnaire is silent for a medical opinion; however, a diagnosis of derangement of the knee, bilaterally, was noted. The Veteran’s medical history documented how an initial injury to his knees while in Iraq occurred when he was getting out of an armored vehicle with a heavy foot porch. The injury caused swelling bilaterally, which was treated with ice. The Veteran reported bilateral knee pain since the injury. The Veteran submitted a positive medical opinion dated June 2016. The examiner noted the Veteran had been under his care since December 2014. The Veteran’s symptoms included bilateral knee pain, which was noted was claimed as a result of injuries sustained during his military service. The examiner noted a review of the Veteran’s orthopedic evaluation in addition to imaging was completed. The examiner found it was more likely than not the Veteran’s conditions as presented in both his orthopedic evaluation and from the imaging could be reasonably assumed as being acute flare-ups of a chronic condition that began from an injury previously sustained during the Veteran’s active service. The Board finds the weight of the evidence indicates it is at least as likely as not that the Veteran’s right and left knee conditions are related to his active service, and service connection is granted. 4. Service connection for a right wrist condition is denied. The Veteran asserts that he has a right wrist condition. The record does not reflect that the Veteran has been found to have a right wrist condition at any time. The report of a March 2015 disability benefits questionnaire notes a disorder to the left wrist but did not find a right wrist disability. Service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran asserts that he has a right wrist condition. 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. § 1154 (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) 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). The Veteran’s claim is supported solely by his own statements on appeal. The Veteran is competent to state that he experiences symptoms related to his right wrist. However, the Board finds his lay statements that such symptoms are attributable to a right wrist disability do not constitute competent evidence of the existence of any right wrist disability. A medical professional did not find that the Veteran has a right wrist disability. The Veteran has not offered any medical qualifications. He is not competent to offer an opinion regarding the diagnosis of a right wrist condition. The diagnosis of the claimed disorder is not amenable to observation by a lay person and requires specific clinical testing and correlation. It is too complex to be addressed by a layperson. The Veteran has not been shown to have a right wrist disability at any time. This includes having a functional disability manifested by pain. In the absence of current disability, the Board finds that service connection may not be granted for a right wrist disability. 5. Service connection for bilateral hearing loss is denied. The Veteran contends he has a hearing loss disability caused by exposure to loud noise during service. The Veteran does not have a hearing loss disability for VA purposes. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran was afforded a VA hearing loss examination in June 2015. The VA examiner’s pure tone audiometric examination showed the following results, in decibels (dB): HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 -5 0 10 LEFT 0 0 0 0 10 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examiner found that the Veteran has normal hearing in both ears. The Veteran has not submitted any medical evidence showing a current hearing loss disability as defined by VA. There is not evidence of a hearing loss disability at any time relevant to the appeal. Without a current hearing loss disability, the first requirement for establishing service connection has not been met. Therefore, the Board finds the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a right shoulder and arm is remanded. 2. Service connection for a left shoulder and arm is remanded. 3. Service connection for a left wrist condition is remanded. 4. Service connection for migraine headaches is remanded. In a July 2015 notice of disagreement, the Veteran detailed how he believes his conditions are related to his active service. For example, he noted that by carrying his ruck sack for miles, which weighed over 50 pounds, he developed issues associated with his shoulders. A January 2015 disability benefits questionnaire notes a diagnosis of bilateral unspecified derangement of the shoulder joints. However, no opinion as to the etiology of the Veteran’s bilateral shoulder condition was provided. Given the Veteran’s contentions and a diagnosis, the Veteran should be scheduled for a VA examination to determine whether the Veteran’s bilateral should disability is related to his active service. Regarding his wrist disabilities, a buddy statement dated November 2014 detailed how J.V. witnessed the Veteran fall out of his vehicle and observed the Veteran holding his left wrist. A March 2015 disability benefits questionnaire notes a disorder to the left wrist. No opinion was provided. Given the available evidence, a medical opinion is warranted to determine if the Veteran’s left wrist condition is related to his active service. In a July 2015 notice of disagreement, the Veteran detailed how he fired a weapon during his service overseas, and he believes that his use of his weapon resulted in his headaches. An examination from October 2014 notes a migraine diagnosis. The Veteran’s medical history notes the Veteran believes his headaches are due to head trauma and a loss of consciousness that he experienced during his active service. No opinion was provided. The Board notes the Veteran is competent to observe symptoms associated with headaches or migraines. Given the Veteran’s diagnosis and his report of firing a weapon during his active service overseas and his report of head trauma, a VA medical opinion should be obtained to determine the etiology of his migraine headaches. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records dated after February 2017. 2. Obtain an examination and opinion regarding the nature and etiology of any right or left shoulder and arm condition. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right or left shoulder and arm condition had its clinical onset during active service or is related to any incident of service to include the circumstances related to the Veteran’s overseas service to include carrying a rucksack weighing over 50 pounds for miles as part of his duties. The examiner should elicit from the Veteran a complete history of his symptomatology, including any in-service symptomatology and treatment; as well as his complete post-service history of symptoms and treatment related to any right or left shoulder and arm condition. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Obtain an examination and opinion regarding the nature and etiology of any left wrist condition. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current left wrist condition had its clinical onset during active service or is related to any incident of service to include the circumstances related to the Veteran’s overseas service to include his report of falling onto his left wrist. The examiner should elicit from the Veteran a complete history of his symptomatology, including any in-service symptomatology and treatment; as well as his complete post-service history of symptoms and treatment related to any left wrist condition. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Obtain an examination and opinion regarding the nature and etiology of any migraine condition. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current migraine condition had its clinical onset during active service or is related to any incident of service to include the circumstances related to the Veteran’s overseas service to include his report of firing a weapon close to his head and his reported head trauma. The examiner should elicit from the Veteran a complete history of his symptomatology, including any in-service symptomatology and treatment; as well as his complete post-service history of symptoms and treatment related to any migraine condition.   The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck