Citation Nr: 20021331 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-35 492 DATE: March 25, 2020 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for residuals of a brain concussion is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a right knee disability to include as secondary to service-connected disease or injury is remanded. FINDINGS OF FACT 1. A right shoulder disability, diagnosed as degenerative joint disease, was not manifest in service and is not otherwise attributable to service; arthritis did not manifest within one year of separation from service. 2. Residuals of a brain concussion were not manifest in service and are not otherwise attributable to service. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred or aggravated during service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C. §§ 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. Residuals of a brain concussion were not incurred in or aggravated by service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to June 1990. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision rendered by the Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Right shoulder disability and residuals of a brain concussion Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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 or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he has a right shoulder disability related to service as well as residuals of a brain concussion related to service to include as due to firing weaponry. See the Veteran’s claim for VA benefits dated December 2013. The Board acknowledges the current evidence documents a finding of degenerative joint disease of the right shoulder and the Veteran has stated he has residuals of a concussion and fired weaponry in service. However, the Board finds that the objective evidence outweighs his contention that a right shoulder disability and residuals of a brain concussion manifested in service or are otherwise due to service. Crucially, the Veteran’s service treatment records indicate no suggestion of treatment for or complaints of symptoms related either a right shoulder disability or a brain concussion or residuals thereof. Additionally, his April 1990 separation examination revealed normal findings as to these disabilities and the Veteran denied a history of both disabilities on his report of medical history in conjunction with the separation examination. More specifically, the separation examination disclosed that the upper extremities, neurologic and psychiatric systems were norma. Indeed, the earliest indication of any of these disabilities is in 2013 when the Veteran filed his claim for VA benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. This is more than 20 years after the Veteran’s discharge from service. The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran can competently testify about symptoms he experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran’s history of a right shoulder disability and residuals of a brain concussion since service is outweighed by the objective evidence of record considering the lack of any post service identification until 2013 as well as the available service treatment records which indicate normal findings of the upper extremities, neurologic and psychiatric systems. Therefore, to the extent that the Veteran contends that his right shoulder disability and residuals of a brain concussion manifested during service, this lay evidence is at odds with the remainder of the record, which reflects normal findings during service and his denial of pertinent pathology. As such, the Veteran’s statements are lacking probative and lacking in credible value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In short, there is no credible evidence of an in-service manifestation of a right shoulder disability and residuals of a brain concussion. To the extent that the Veteran asserts that his right shoulder disability and residuals of a brain concussion are related to service, the Board finds that the Veteran’s statements regarding these disabilities being incurred in service is not credible given the objective evidence of record to include the service treatment records and the postservice medical records. The Board also notes that while the Veteran currently degenerative joint disease of the right shoulder, in as much as the service treatment records reveal a normal orthopedic examination, he did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation. 38 C.F.R. § 3.303(b). The Veteran has not contended otherwise. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for a right shoulder disability and residuals of a brain concussion. The benefits sought on appeal are accordingly denied. REASONS FOR REMAND Service connection for a bilateral hearing loss disability and a right knee disability The Veteran contends that he has a bilateral hearing loss disability that is related to service, in particular from noise exposure due to firing weaponry. See, e.g., the Veteran’s claim for VA benefits dated December 2013. The Veteran was provided a VA audiological examination in August 2014 to determine the etiology of his claimed bilateral hearing loss disability. After examination of the Veteran, the VA examiner declined to diagnose the Veteran with a bilateral hearing loss disability. In this regard, the Board notes that the audiological examination did not meet the criteria for a hearing loss disability for VA evaluation purposes pursuant to 38 C.F.R. § 3.385. Although the VA examiner noted that speech discrimination scores were 80 percent in each ear, the examiner subsequently noted that these results were not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. The Board notes that there is no other evidence in the claims folder that indicates a bilateral hearing loss disability for VA evaluation purposes. In the Veteran’s November 2019 VA Form 9, he reported that his hearing has worsened since the August 2014 VA examination. In light of the report of worsened hearing, the Board finds that the Veteran should be provided another VA examination on remand to determine the etiology of his claimed bilateral hearing loss disability. With respect to the Veteran’s claim of service connection for a right knee disability, the Veteran contends that he has a right knee disability that is related to service or is alternatively secondary to the Veteran’s service-connected patellar chondropathy of the left knee and left knee recurrent dislocation. See the Veteran’s November 2019 VA Form 9. The Board notes that the Veteran’s service treatment records are absent complaints of or treatment for a right knee disability or symptoms associated therewith. However, the current evidence documents the Veteran’s report of right knee functional impairment that requires a sleeve as well as medical findings of loose body of the right knee and minimal narrowing of the medial joint compartment. See a VA treatment record dated October 2018. There is no medical opinion of record as to whether the Veteran has a right knee disability that is secondary to his service-connected left knee disabilities. Based on the foregoing, the Board finds that an opinion for such should be obtained on remand. The matters are REMANDED for the following action: 1. Provide the Veteran a VA examination for his claimed bilateral hearing loss disability. The examiner is requested to review all pertinent records associated with the claims folder, including the Veteran’s service treatment records, post-service medical records, and lay statements. Based on the review of the Veteran’s claims file and examination of the Veteran, the examiner is asked to opine as to the following: a. Identify whether the Veteran has a bilateral hearing loss disability for VA evaluation purposes. b. If the Veteran has a bilateral hearing loss disability for VA evaluation purposes, whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss disability is related to his service, to include his exposure to noise from firing weaponry. Provide a comprehensive rationale for the requested opinion. 2. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his claimed right knee disability. The claims file must be made available to the examiner for review. Based on the review and the examination, the examiner should respond to the following: a. Whether the Veteran has a right knee disability. b. If the Veteran has a right knee disability, whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s right knee disability is caused or aggravated by his service-connected patellar chondropathy of the left knee and left knee recurrent dislocation. If the examiner finds that the right knee disability is aggravated by the service-connected left knee disabilities, then he/she should quantify the degree of aggravation, if possible. Provide a comprehensive rationale for the requested opinion.   3. Review the claims file to ensure that all of the foregoing requested development is completed and arrange for any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.