Citation Nr: 21000401 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-46 606 DATE: January 5, 2021 ORDER Service connection for right ear hearing loss is denied. Service connection for a right knee disability is denied. REMANDED The issue of service connection for a respiratory disability (to include asthma and COPD) is remanded. The issue of service connection for nasal problems is remanded. The issue of service connection for sleep apnea is remanded. The issue of service connection for right upper extremity ulnar neuropathy is remanded. The issue of service connection for left upper extremity ulnar neuropathy is remanded. The issue of service connection for PTSD is remanded. The issue of service connection for social anxiety is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had a right ear hearing loss disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that a right knee disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to October 1984. These matters were remanded in January 2020 for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for right ear hearing loss is denied. The Veteran contends that her right ear hearing loss is due to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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 underwent VA examinations in February 2016 and July 2020. The February 2016 examination report reflects that auditory thresholds for the right ear at frequencies 500, 1000, 2000, 3000, and 4000 hertz were 20, 20, 15, 20, and 35 respectively. The speech recognition score was 98 percent. The July 2020 examination report reflects that auditory thresholds for the right ear at frequencies 500, 1000, 2000, 3000, and 4000 hertz were 20, 20, 20, 30, and 30 respectively. The speech recognition score was 94 percent. Furthermore, treatment records do not contain a diagnosis of right ear hearing loss as defined by 38 C.F.R. § 3.385. Although the Veteran believes she has a current diagnosis of right ear hearing loss, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for right ear hearing loss must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a right knee disability is denied. The Veteran contends that she has a right knee disability that is due to service. Specifically, she asserts that she injured her right knee in June 1983. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran incurred a right knee sprain in May 2016, and evidence shows that she incurred a right knee injury during service, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records reflect that the Veteran sustained a right knee injury in June 1983. It was assessed as a right knee contusion. There are no additional in-service treatment records reflecting a right knee disability. The September 1984 separation examination was normal. In a September 1984 Report of Medical History, the Veteran responded “no” when asked if she had a “trick” or locked knee. At an August 2019 Board hearing, the Veteran testified that she has treated with an orthopedic surgeon at Banner Health and that an MRI revealed a meniscus tear in her right knee. Pursuant to a January 2020 Board Remand, the RO obtained medical records from Banner Health and Orthopaedic Center of the Rockies. None of the records contained an MRI report revealing a meniscus tear. VA treatment records reflect that the Veteran injured her knee in May 2016 while pushing a shopping cart. She said that her knee suddenly went out. The emergency room diagnosis was a right knee sprain. X-rays showed no acute fracture or dislocation, and no substantial degenerative changes. The treatment records fail to mention the Veteran’s in-service injury or suggest that the symptoms were due to service. The Veteran underwent a VA examination in March 2020. She reported falling 10-12 feet while in service and sustaining a meniscus tear that has gotten progressively worse. Upon examination, range of motion was normal. Joint stability tests were normal as well. The Veteran reported that she used a wheelchair (regularly) and a cane (constantly) as a result of a back disability. The examiner found no evidence of current, chronic knee disability on examination or on x-ray imaging. In a March 2020 opinion, the examiner found it less likely than not that the Veteran’s current symptoms were incurred in or caused by her in-service injury. She reasoned that the Veteran’s in-service injury was acute only. The service treatment records were silent after documenting the June 1983 injury. She noted that x-rays in 2008 were normal, and that there is no evidence in the current medical records of a chronic right knee disability. She stated that a nexus has not been established. The Veteran believes her claimed disability is related to an in-service injury. She is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the March 2020 VA examiner. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for a right knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The issues of service connection for nasal problems, sleep apnea, and a respiratory disability (to include asthma and COPD) are remanded. These issues were remanded in January 2020 so that the Veteran could undergo VA examinations and so that a VA examiner could render opinions regarding whether the disabilities are related to service. Specifically, the examiner(s) were to provide an opinion on whether the Veteran’s disabilities were at least as likely as not due to exposure to calcium chlorine in bottles and/or chlorine gas, confirmed exposure to asbestos, and September 1984 reports of shortness of breath and pain and pressure in her chest. The Veteran underwent VA examinations in March 2020, and the examiner provided negative nexus opinions; however, she did not discuss any of these factors in rendering her opinion. The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. The RO should obtain an addendum opinion from the March 2020 examiner addressing whether the Veteran’s nasal problems, sleep apnea, and respiratory disability are due to exposure to calcium chlorine in bottles and/or chlorine gas, confirmed exposure to asbestos, and September 1984 reports of shortness of breath and pain and pressure in her chest. The issues of service connection for right and left upper extremity ulnar neuropathy are remanded. These issues were remanded in January 2020 so that the Veteran could undergo VA examinations and so that a VA examiner could render opinions regarding whether the disabilities are related to service. The Veteran completed a September 1984 Report of Medical History in which she answered “yes” to whether she had swollen or painful joints, and answered “Don’t know” when asked about neuritis. The examiner was to provide an opinion as to whether the Veteran’s disabilities are at least as likely as not related to an in-service injury or disease, including the September 1984 reports of swollen or painful joints and possible neuritis. The Veteran underwent a VA examination in March 2020, and the examiner rendered a negative nexus opinion; however, she did not discuss the Veteran’s September 1984 complaints in providing her opinion. To the contrary, her opinion was based on the assumption that “there is no evidence of ulnar neuropathy while the Veteran was in service,” and that “the medical record is silent regarding this condition until 2009.” The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. The RO should obtain an addendum opinion from the March 2020 examiner addressing whether the Veteran’s right and left upper neuropathy is due to September 1984 reports of swollen or painful joints, and possible neuritis. The issues of service connection for PTSD and social anxiety are remanded. These issues were remanded in January 2020 so that the Veteran could undergo VA examinations and so that a VA examiner could provide opinions regarding whether the disabilities are related to service. The Veteran underwent a VA examination in February 2020. For the most part, the examination report was extremely thorough. The examiner found that the Veteran’s current diagnosis is Gender Dysphoria, which was diagnosed in 2015. She opined that it was not due to service. The examination report also reveals numerous pre-service traumas. The Veteran reported that she was born with ambiguous genitals. She underwent several childhood surgeries in order to assign her a male gender. She reported that at the age of 11, she had severe complications from the surgeries resulting in incontinence. She reported that she was raped/sodomized at age 14. She reported sexual identity confusion for most of childhood and adult life. It seems at least plausible that these traumas resulted in a pre-existing psychiatric disability. This was the opinion of the October 2010 VA examiner, who opined that the Veteran’s PTSD was likely caused by childhood traumas. The Veteran contends that even if psychiatric disabilities were caused by childhood traumas, they were aggravated by service. Because the Veteran’s enlistment examination yielded normal findings, the January 2020 remand included instructions for the examiner to determine whether the Veteran suffered from a pre-existing psychiatric disability. If so, it must be determined whether it was clearly and unmistakably not aggravated by service. This aspect of the Veteran’s claim was not addressed. The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. The Board finds that a remand is necessary in order to obtain an opinion regarding whether the Veteran had any psychiatric disabilities that clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds that any disability clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service (to include harassment, bullying, teasing, and name calling). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the March 2020 VA examiner that addresses whether the Veteran’s sleep apnea, nasal problems, and/or respiratory problems are at least as likely as not related to an in-service injury, event, or disease, including exposure to calcium chlorine in bottles and/or chlorine gas during service, confirmed exposure to asbestos, and September 1984 reports of shortness of breath and pain or pressure in her chest. 2. Obtain an addendum from the March 2020 VA examiner that addresses whether the Veteran’s right and left upper extremity neuropathy is at least as likely as not related to an in-service injury, event, or disease, including September 1984 reports of swollen or painful joints and possible neuritis. 3. Obtain an addendum from the February 2020 VA psychiatric examiner. Given the numerous childhood traumas reported by the Veteran, the examiner is asked to provide a response to the following: Did the Veteran clearly and unmistakably (undebatable) have a psychiatric disability that preexisted the Veteran’s service? If the examiner finds that the Veteran did clearly and unmistakably have a psychiatric disability that preexisted service, was it clearly and unmistakably not aggravated by service? JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.