Citation Nr: 21001158 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-26 821 DATE: January 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a right wrist disorder is denied. Entitlement to service connection for a left wrist disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMANDED Entitlement to service connection for residuals of a stroke, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for right-sided speech impairment is remanded. FINDINGS OF FACT 1. Evidence of record throughout the entire appeal period fails to demonstrate that the Veteran has a current bilateral hearing loss disability for VA purposes. 2. The current right and left wrist disorders were not related to any event, injury, or disease in service, and arthritis was not manifest to any degree within one year after discharge from service. 3. The current right and left knee disorders were not related to any event, injury, or disease in service, and arthritis was not manifest to any degree within one year after discharge from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria for entitlement to service connection for a right wrist disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 3. The criteria for entitlement to service connection for a left wrist disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 4. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to January 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision. In October 2018, the Veteran testified at videoconference hearing at the agency of original jurisdiction (AOJ) before the undersigned Veterans Law Judge (VLJ) from the Board. A transcript of the hearing is included in the electronic claims file. In March 2019, the Board remanded these matters for additional development. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such sensorineural hearing loss and 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 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 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 (2020). In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007). The Board also notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under 38 U.S.C. § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 1. Entitlement to service connection for bilateral hearing loss The Veteran has asserted that in-service noise exposure has caused his claimed bilateral hearing loss. His DD Form 214 revealed that his military occupational specialty (MOS) was Abrams Armor Crewman. Service treatment records associated with the record are negative for complaints, treatment, or diagnoses of a bilateral hearing loss disability as defined by VA under 38 C.F.R. § 3.385. In addition, post-service evidence of record, including the September 2013 and November 2019 VA examination report findings, does not reflect a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. The statements from the Veteran are competent evidence as to observable symptomatology, including decreased hearing acuity. See Barr, 21 Vet. App. at 307. However, the statements regarding the existence and etiology of the Veteran’s claimed bilateral hearing loss draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the existence and etiology of the Veteran’s claimed bilateral hearing loss falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The criteria to award entitlement to service connection for bilateral hearing loss have not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a right wrist disorder 3. Entitlement to service connection for a left wrist disorder 4. Entitlement to service connection for a right knee disorder 5. Entitlement to service connection for a left knee disorder The Veteran has asserted that his claimed wrist and knee disorders were incurred in or etiologically related to events during active service. He has recalled having bilateral knee pain and swelling while running and marching during service. He further detailed that he worked as a tank gunner during service, sitting in tight spaces with pain in the knees. The Veteran also reported swelling of his wrists while doing push-ups in basic training. After reviewing the evidence of record, the Board finds that entitlement to service connection for bilateral wrist and knee disorders is not warranted. There is not a sufficient basis in the record to conclude that the present wrist and knee disorders were incurred during active military service or manifested as a chronic disease of arthritis within a year thereafter, or for years after his discharge from active duty service in 1990. Service treatment records revealed treatment for bilateral wrist and left knee strains. A February 1987 treatment note listed an assessment of mild bilateral wrist strain. In April 1987, the Veteran complained of jamming his left wrist and was treated for left wrist sprain. The Veteran was also treated for resolving left knee MCL strain in February 1988. A November 1990 reserve service examination report did not show any wrist or knee complaints, findings, or diagnoses and reflected that upper and lower extremities were normal on clinical evaluation. Post-service VA treatment records detailed that the Veteran suffered injuries in a fall while working in construction in August 1998 and had left knee trauma in May 2000 when he stepped in pothole while jogging. Treatment records dated in February 2001 detailed complaints of chronic left knee pain, swelling, and tenderness since prior trauma in May 2000. A July 2001 treatment note listed findings of left knee degenerative joint disease. The Veteran was noted to suffer a stroke with slurred speech and right-sided weakness in January 2011. A November 2011 VA X-ray report revealed moderate degenerative changes of the left knee. VA examination reports dated in July 2013 included diagnoses of left knee MCL strain, patella/quadriceps tendinitis, bilateral knee osteoarthritis, bilateral wrist osteoarthritis, and right upper extremity hemiparesis related to cerebrovascular accident (CVA). The Veteran was treated for blunt trauma to the right knee in July 2013. Unsigned and undated Disability Benefits Questionnaires for the knees and wrists were received in June 2017 and additional records received from the Social Security Administration showed findings of osteoarthrosis. Post-service medical evidence of record first showed findings of the present wrist and knee disorders years after the Veteran’s separation from active service. The passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Evidence fails to reflect that arthritis was manifested to a compensably disabling degree within the first year after the Veteran completed his period of active duty service in 1990. Although there is evidence of currently diagnosed bilateral wrist and knee disorders, the record does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran’s claimed bilateral wrist and knee disorders and his active military service, including documented in-service treatment for strains. In fact, in the July 2013 VA examination report, the examiner opined that it was less likely than not that the Veteran’s current knee diagnoses of quadriceps tendinitis and osteoarthritis were related to the Veteran’s service. In the cited rationale, the examiner acknowledged that there was documentation of a left knee MCL sprain without permanent residuals with no other complaints regarding the knees. The examiner further highlighted that current knee findings may be related to the effects of aging, obesity, or residuals from a 1998 work-related fall (discussed in VA treatment records dated in July 1999 as a fall from an eight-story building at work). In an additional July 2013 VA examination report, the examiner opined that it was less likely than not that there was a current wrist condition related to a condition in service. In the cited rationale, the examiner noted that the in-service left wrist sprain was self-limiting without residuals. The examiner highlighted that there was no other documentation of wrist injury in service, opining that bilateral wrist arthritis may be due to age-related changes or other remote trauma (discussed in VA treatment records dated in July 1999 as a fall from an eight-story building at work). Finally, the examiner indicated that other findings in the right hand/wrist were CVA residuals with right hemiparesis. The statements from the Veteran are competent evidence as to observable symptomatology, including swelling, tenderness, and pain. See Barr, 21 Vet. App. at 307. However, the statements that the Veteran has bilateral wrist and/or knee disorders as a result of active military service draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran’s claimed bilateral wrist and knee disorders falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Accordingly, the criteria to award entitlement to service connection for right wrist, left wrist, right knee, and left knee disorders have not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims of entitlement to service connection for right wrist, left wrist, right knee, and left knee disorders, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for residuals of a stroke, to include as secondary to service-connected PTSD, is remanded. 2. Entitlement to service connection for right-sided speech impairment is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for stroke residuals, to include as secondary to service-connected PTSD. As the September 2020 VA examiner did not provide adequate findings as to whether the Veteran’s diagnosed stroke residuals were aggravated (permanently worsened) by the Veteran’s service-connected PTSD, another remand is required to obtain an addendum medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, because a decision on the remanded issue of entitlement to service connection for stroke residuals could significantly impact a decision on the issue of service connection for right-sided speech impairment, the issues are inextricably intertwined and a remand of the service connection claim for right-sided speech impairment is required. The matters are REMANDED for the following actions: 1. Obtain a VA medical opinion to clarify the etiology of the Veteran’s claimed stroke residuals. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. Based on a review of the evidence of record and with consideration of the Veteran’s statements, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently or previously diagnosed stroke residuals were aggravated (permanently worsened) by the Veteran’s service-connected PTSD. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2020). (Continued on the next page)   2. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the October 2020 SSOC. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.