Citation Nr: 20021927 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 19-36 111 DATE: March 27, 2020 ORDER Entitlement to service connection for left knee tendonitis is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to a compensable evaluation for right ear hearing loss is denied. REMANDED Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Left knee tendonitis was not demonstrated while on active duty, and there is no competent evidence linking the disorder to service or a service-connected disability. 2. Resolving reasonable doubt in the Veteran’s favor, his left ear hearing loss is related to service. 3. The Veteran's tinnitus began during active service. 4. The Veteran’s right ear hearing disability has not manifested by worse than Level I hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee tendonitis have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310, 3.317. 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for a compensable initial rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of May 2018 and June 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, to include organic diseases of the nervous system to include sensorineural hearing loss, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1133; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for left knee tendonitis The Veteran contends that his left knee condition is related to left knee complaints while on active duty. More specifically, he reports severe daily knee pain rated at 5 to 7 on a scale of 10. He states he has trouble getting out of bed in the morning, that he cannot put weight on the joint, and that he walks with a limp 80 percent of the time. He reports that he was issued a knee brace and used it until it wore out. He also reports that the pain level fluctuates and becomes unbearable on flare-ups. Service treatment records confirm a complaint of knee pain in April 1988, which was characterized as tendonitis. There is no other evidence in the service treatment record of any chronic knee condition. At a May 2018 VA knee examination, the Veteran complained of continuing left knee pain. For that evaluation the examiner documented a motor vehicle accident involving the left knee in 1988, however no follow up treatment was recorded in the records. Range of motion was limited to 70 degrees in flexion and extension, with difficulty kneeing down, on weight bearing and evidence of localized tenderness and crepitus. Pain on weight bearing was documented. No additional loss of function was recorded after repetitive use. Loss of range of motion due to pain was recorded as 0 to 70 degrees in flexion and 70 to 0 degrees in extension. For the subject examination the Veteran reported that he did not have flare ups. The examiner noted no evidence of ankylosis, muscle atrophy or instability for the left knee. Difficulty with prolonged standing and walking were listed as symptoms that impact the Veteran’s ability to perform occupational tasks. And finally, objective evidence of pain on non-weight-bearing was observed, passive range of motion was the same as active range of motion and objective evidence of pain on passive range of motion mirrored the results from pain on active range of motion. It was the opinion of the examiner that the left knee tendonitis with patellar femoral syndrome was less likely than not incurred in or caused by the left knee condition during service. The examiner noted that the Veteran was released from active duty in 1992. Records indicated an incident involving the left knee in 1988; however, there was no follow-up treatment, suggesting that his left knee condition resolved. The examiner opined that this indicates that the Veteran’s current left knee conditions are unrelated to service. On review, the Board finds the May 2018 VA opinion to be the most probative evidence on the issue of service connection for the left knee. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the physician’s access to the claims folder and the thoroughness and detail of the opinion). The VA opinion was based on a physical examination and review of the claims folder and includes a discussion of the Veteran’s symptom description and complaints in the context of the medical evidence. There are no positive medical opinions of record. In considering the merit of the claim, the Board acknowledges the Veteran’s beliefs and the representative’s contentions but notes that they are not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summary, the preponderance of the probative evidence is against finding that the appellant’s left knee disorder is related to his active duty service. The doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. Accordingly, the claim must be denied. 2. Entitlement to service connection for left ear hearing loss The Veteran contends that he has left ear hearing loss disability which is connected to his active military service to include a military occupational specialty of construction equipment repairman and his exposure to toxic levels of noise from mortar and other explosives. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s enlistment audiogram in October 1984 shows the following audiometric thresholds at frequencies of 1000, 2000, 3000, and 4000 Hertz: 5, 10, 30, 15. A left ear hearing loss disability was not noted upon enlistment. Upon VA examination in May 2018, an audiogram showed left ear hearing loss for VA purposes, as defined by § 3.385. The examiner opined that the Veteran’s right ear hearing loss is at least as likely as not related to military noise exposure, based on the Veteran’s military occupational specialty of construction equipment repairer and the significant changes in hearing thresholds during military service. The examiner opined that the Veteran’s enlistment audiogram showed mild hearing loss in the left ear, and the separation audiogram showed normal hearing. The examiner opined that it is less likely than not that the Veteran’s hearing loss was aggravated beyond normal progression in military service, given that there were no significant threshold shifts between enlistment and separation. A diagnosis of defective hearing was not documented on the enlistment examination. Because a hearing loss disability was not noted at enlistment, in order to rebut the presumption of soundness, it must be shown by clear and unmistakable evidence that hearing loss preexisted service. The May 2018 VA medical opinion did not apply the standard of clear and unmistakable evidence. The May 2018 opinion regarding the left ear lacks probative value because it applied the incorrect standard. The May 2018 VA medical opinion provides probative support for the claim, inasmuch as the examiner linked the Veteran’s right ear hearing loss to his traumatic noise exposures in service. The Board finds that reasonable doubt must be resolved in the Veteran’s favor, given his history of noise exposure in service and the positive nexus evidence concerning his right ear hearing loss. Accordingly, resolving reasonable doubt in the Veteran’s favor, service connection for left ear hearing loss is warranted. Entitlement to service connection for tinnitus In April 2018 the Veteran filed a claim for service connection for tinnitus. Service treatment records include an audiological examination in June 1992, within one week of separation, wherein the Veteran reported a humming in his ears. More recently in June 2012 during a mental health intake assessment, the Veteran responded “yes” to a question about hearing ringing in his ears. In conjunction with his claim, the Veteran underwent a VA contract audiological examination in May 2018 which included an evaluation for tinnitus. However, at that evaluation the examination report documented that the Veteran reported he did not have recurrent tinnitus. The examiner concluded the examination report by saying that the Veteran’s tinnitus did not impact his ordinary conditions of life including ability to work. The examiner did not provide a nexus opinion, as the examiner found no medical evidence of a current disability. Service treatment records show that tinnitus initially manifested in service. VA medical records reflect that the condition has continued since service. Although tinnitus was not diagnosed on VA examination in 2018, the Veteran’s other statements indicate that he currently has tinnitus. He also reported current tinnitus on VA PTSD assessments. The Veteran’s statements provide competent evidence of a current diagnosis. Accordingly, the evidence is at least in equipoise, and service connection for tinnitus is warranted. Right ear disability compensable rating claim The Veteran contends that the severity of his right ear hearing disability is not accurately represented by his non-compensable rating for that condition. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. As illustrated above, the Veteran attended a VA examination in May 2018. The average puretone threshold from 1000-4000 Hertz was 37.5 decibels in the right ear. Speech recognition ability was evaluated to be 92 percent for the right ear. Applying the findings from the May 2018 audiometry examination to Table VI in 38 C.F.R. § 4.85 yields a numeric designation of Level I hearing for the right side. Where hearing loss is measured to be Level I, and speech recognition is rated at 92 percent, a noncompensable rating is assigned. Id. The criteria for establishing a disability rating based on exceptional patterns of hearing impairment pursuant to 38 C.F.R. § 4.86 is not applicable given the Veteran’s hearing impairment scores. The functional effects of hearing loss on the Veteran’s daily life activities and occupational functioning were discussed by the Veteran at his May 2018 VA examinations and have been taken into consideration by VA. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran has reported not being able to hear birds and hearing only dull sounds when he removes his hearing aids. He also reported not being able to hear his professor when the hearing aids were in place. These symptoms are reflective of the types of functional difficulty that would be expected for a person with mild hearing loss, and they are adequately reflected in the hearing levels that have been recorded on examination. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss). Accordingly, the May 2018 VA examination is sufficiently in compliance with the provisions of VA regulations, and it is assigned great probative value in determining the Veteran’s level of hearing impairment for his right ear. The most probative medical evidence as to the severity of the appellant’s right ear hearing loss are the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant a compensable rating. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea to include as secondary to posttraumatic stress disorder The Veteran contends that obstructive sleep apnea is caused or aggravated by his service-connected PTSD. The Veteran underwent a VA examination in June 2018, where he reported suffering from sleep apnea since the 1990’s. He reported that the use of a CPAP machine since 2017 has improved his quality of sleep, but he continues to wake up at night and feel fatigued in the morning. He also associated a lack of concentration and short temper with a sleeping disorder. The examiner opined that sleep apnea is less likely than not proximately due to service-connected PTSD. The examiner cited several studies in support of the conclusion that there is no causal connection between PTSD and sleep apnea. The medical opinion did not address whether obstructive sleep apnea is aggravated by PTSD. The examiner's opinion was limited to a discussion of causation and did not address whether the Veteran's sleep apnea was worsened by his PTSD. In El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013), the U.S. Court of Appeals for Veterans Claims held that a medical opinion which focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. When causation and aggravation are at issue, the Board must ensure that the opinion addresses each. El-Amin, 26 Vet. App. at 141. It is necessary to remand the claim for a medical opinion addressing aggravation. 2. Entitlement to service connection for a lumbar spine condition is remanded. The Veteran contends that his lower back problem is connected to his active duty service. At his separation physical examination in June 2012 the Veteran reported recurrent back pain. At a mental health intake assessment, and as part of a traumatic brain injury screening, in July 2014, the Veteran reported experiencing an explosion that caused him to hit the back of a truck while on active duty. VA treatment records show a complaint for a lower back condition in October 2017. The Veteran has not as yet been afforded a VA examination to investigate the nature and etiology of his back condition. The Board finds that further development is in order. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not (a) proximately due to service-connected PTSD; or (b) aggravated (worsened) beyond its natural progression by service-connected PTSD. The examiner should consider the April 2019 brief, which cited a medical study showing an association between PTSD and sleep apnea. 2. Arrange for the Veteran to undergo a VA orthopedic examination with a physician to determine the nature and etiology of any diagnosed lumbar spine disability. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. All indicated evaluations, studies, and tests should be conducted. The examiner should then address: a. What are the Veteran’s current diagnoses of the lumbar spine? b. For each diagnosed lumbar spine disorder, address whether is it at least as likely as not that the disorder had its onset during or is otherwise related to any disease or injury in the claimant’s service. Please address her lay statements asserting that she has had lumbar spine pain since her active duty service. (Continued on the next page)   c. The examiner should specifically consider and address the Veteran’s reports of experiencing an explosion on active duty, loss of consciousness, and hitting a truck in the context of his lumbar spine claim. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. CATHERINE CYKOWSKI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.