Citation Nr: 21062729 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-29 808 DATE: October 12, 2021 ORDER Entitlement to service connection for a left hip disorder is granted. Entitlement to service connection for a right hip disorder is granted. Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for a left hand disorder is remanded. Entitlement to service connection for a right hand disorder is remanded. Entitlement to service connection for a left elbow disorder is remanded. Entitlement to service connection for a right elbow disorder is remanded. FINDINGS OF FACT 1. The Veteran's left hip disorder was incurred in, or caused by, his military service. 2. The Veteran's right hip disorder was incurred in, or caused by, his military service. 3. The Veteran was exposed to acoustic trauma during his active military service. 4. The Veteran's right ear hearing loss was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a right hip disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 19, 1968 to November 17, 1972; May 10, 1976 to July 5, 1976; November 20, 1976 to April 30, 1977; June 6, 1977 to July 15, 1977; June 5, 1978 to July 14, 1978; November 19, 1968 to November 17, 1972; August 4, 1979 to November 8, 1979; and from November 9, 1979 to January 30, 1991, with additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In June 2020, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is also a presumption of service connection for the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, as well as sensorineural hearing loss, which is categorized as an "organic disease of the nervous system." See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). Under this presumption, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. When the condition noted during service is not shown to be chronic at the time, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under the presumption for chronic diseases. Id.; Walker, 708 F.3d at 1338-39. To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). 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 arthritis and sensorineural hearing loss (as an organic disease of the nervous system under 38 C.F.R. § 3.309 (a)) 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). 1. Entitlement to service connection for a left hip disorder 2. Entitlement to service connection for a right hip disorder The Veteran asserts that his left and right hip disorders are related to his active duty service. For the following reasons and bases, the Board finds that service connection is warranted. The Veteran has been diagnosed with bilateral osteoarthritis of the hips. See January 2009 Diagnostic Health Imaging Report. Accordingly, he has a current disability. Davidson, 581 F.3d 1313. Turning to an in-service incident, the Veteran testified that his hip pain originated during his active duty service and has continued to the present. The Veteran further testified that he underwent strenuous physical exercise and parachute training during service. He also stated that he did not complain of his hip symptoms in service, as he did not want to be "grounded." See January 2020 Hearing Transcript. In this regard, the Board notes that the Veteran is competent to report experiencing an in-service injury and resultant symptomatology. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. An April 2007 imaging report reflected the Veteran's left hip disorder was degenerative, and possibly related to a remote trauma. See April 2007 Orange Park Medical Center Imaging Report. In support of his claim, the Veteran submitted opinions by his private care providers. An October 2019 statement by his chiropractor attributed his bilateral hip degenerative disease to his active duty service. The chiropractor rationalized that the compressive types of forces to which the Veteran was subjected to in the military, including parachute training and the repetitive lifting of equipment, led to his current hip disorders. See October 2019 Chiropractic Specialists of Pittsburgh Statement. An August 2020 statement opined that the Veteran's in-service duties of carrying heavy gear up and down would have caused and exacerbated his hip symptoms. The chiropractor opined it was more likely than not that the physical traumas the Veteran suffered during his active duty service, including parachute training and actions as a Naval Flight Officer, caused, contributed to, and aggravated his hip conditions. See August 2020 Oakleaf Chiropractic & Injury Center Statement. The Board notes that there are negative etiological opinions of record, consisting of VA examination reports dated May 2012 and April 2021. However, these examination reports merely rely on the absence of clinical evidence from the Veteran's service treatment records and post-service treatment records and do not adequately address the competent and credible statements of the Veteran regarding his symptomatology. Barr, 21 Vet. App. At 312; Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). In sum, the criteria for entitlement to service connection for a left hip disorder and a right hip disorder have been satisfied. See Davidson, 581 F.3d 131. Accordingly, the Veteran's claims are granted. 3. Entitlement to service connection for right ear hearing loss The Veteran maintains that he suffers from right ear hearing loss, which is the direct result of noise exposure during active service. He specifically asserts that he developed hearing loss during his active service as a result of his in-service exposure to traumatic noise, including significant amounts aircraft noise and that his auditory pathology has continued to worsen since his discharge. See January 2020 Hearing Transcript. The Veteran has been diagnosed with right ear hearing loss. See January 2021 Hearing Loss and Tinnitus DBQ. Accordingly, he has a current disability. Davidson, 581 F.3d 1313. The Veteran has reported exposure to acoustic trauma during his active service, with inconsistent hearing protection. See January 2020 Hearing Transcript. Moreover, the Veteran's statements of his exposure to acoustic trauma have been consistent throughout the appeals process. The Board notes that VA has already conceded in-service noise exposure. Therefore, his significant exposure to acoustic trauma has been established. The Veteran is competent to report observable hearing loss symptomatology and experiencing an injury and resultant auditory pathology in the form of hearing loss during service, as well as experiencing hearing loss symptoms since his separation from active service, as such are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. Additionally, the Veteran is credible in his reports of his auditory symptomatology during and since service. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). These credible reports of a continuity of symptomatology suggest a link between his current hearing loss with his military service. See Duenas v. Principi, 18 Vet. App. 512 (2004). In support of his claim, the Veteran submitted a statement by his private audiologist, which opined that it was more likely than not that the Veteran's hearing loss was the result of his in-service noise exposure. The audiologist rationalized that the Veteran was exposed to hazardous noise throughout his military career, aboard ships and aircraft, and had little to no noise exposure in his civilian life. See March 2013 First Coast Hearing Clinic Statement. The Board notes that there are negative etiological opinions of record. In VA examination reports of May 2011, July 2012, and January 2021, the examiners opined it was less likely that the Veteran's hearing loss was related to his military service. The rationale was based primarily on the absence of the Veteran's service treatment records. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection). Accordingly, the May 2011, July 2012, and January 2021 VA medical opinions form an inadequate foundation upon which to base a denial of entitlement to service connection for bilateral hearing loss. In sum, the Veteran has competently and credibly described suffering in-service acoustic trauma and reported a continuity of symptomatology of bilateral auditory pathology in the form of hearing loss during and since his active service. See Charles, 16 Vet. App. 370; Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). Accordingly, the Board finds that service connection for right ear hearing loss is warranted. REASONS FOR REMAND 1. Entitlement to service connection for right hand disorder and a left hand disorder is remanded. 2. Entitlement to service connection for a right elbow disorder and a left elbow disorder is remanded. Initially, the Board notes that the Veteran was granted service connection for cervical radiculopathy of the middle radicular group in an April 2021 rating decision. The middle radicular group pertains to impairment of the arm, elbow, and wrist. See 38 C.F.R. § 4.124a, Diagnostic Code 8511. At the March 2021 VA examination for the Veteran's neck, the examiner noted that the Veteran had signs and symptoms of cervical radiculopathy, consisting of tingling, numbness, and pain in his bilateral fingertips. The examiner also noted the cervical radiculopathy involved the C7 nerve root (middle radicular group). See March 2021 Neck Conditions DBQ. At the March 2021 VA examination for the Veteran's hands, the same examiner noted the only diagnosis present was diabetic neuropathy of the bilateral upper extremities, consisting of bilateral hand pain, numbness, and tingling. See March 2021 Hand Conditions DBQ. A March 2021 VA examination for the Veteran's elbows reflected a diagnosis of bilateral bursitis. See March 2021 Elbow and Forearm Conditions DBQ. An April 2021 medical opinion stated that the Veteran's neurological disorder symptoms were consistent with peripheral neuropathy of the upper extremities related to diabetes and possible exposure to herbicides. The examiner stated that the Veteran's symptoms were not consistent with cervical radiculopathy. The examiner then opined it was at least as likely as not that the Veteran's peripheral neuropathy affecting his hands was related to his herbicide exposure. The examiner rationalized that the Veteran had no issues with neuropathy prior to service, and the evidence of chronicity establishes a nexus. See April 2021 Medical Opinion DBQ. The Board finds that a remand is required to clarify the internal inconsistencies of the VA examination reports and opinions. In this regard, the record is unclear as to whether the Veteran's hand disorders are due to cervical radiculopathy or peripheral neuropathy. If the Veteran's hand disorders are in fact peripheral neuropathies, the Board also requires clarification as to the etiology thereof. Additionally, the June 2020 Board remand directed the examiner to identify all elbow diagnoses found to be present, to include lateral epicondylitis, which had been previously diagnosed at a December 2011 VA examination. See December 2011 Elbow and Forearm Conditions DBQ. The March 2021 VA examination report only reflected a diagnosis of bilateral bursitis. See March 2021 Elbow and Forearm Conditions DBQ. The Board notes that if a disability existed at any point during the appeal period, or in close proximity to the claim for service connection, it will be considered a current disability even if it has since resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Finally, as this matter is being remanded the Veteran's updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran's updated VA treatment records, dated from March 2021, forward. 2. Thereafter, return the claims file to the March 2021/April 2021 VA examiner for a supplemental opinion. If that examiner is not readily available, a VA opinion may be obtained by another medical professional with an appropriate background or expertise. The Veteran should not be scheduled for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) unless deemed necessary by the VA medical professional rendering an opinion on this claim. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the supplemental opinion. The examiner should answer the following: (a) Left and Right Elbow (i) Identify, by diagnosis, all elbow disorders found to be present, to include lateral epicondylitis, and to include those that have resolved during the period on appeal. (ii) For each elbow disorder found, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its clinical onset during service or is related to any incident of service, to include the Veteran's flight training (including parasailing with hard landings) and/or duties involving lifting, carrying and loading heavy equipment. (b) Left and Right Hand (i) Clarify whether the Veteran's hand disorder, as a condition manifested by numbness, tingling, and pain can be attributed to peripheral neuropathy or cervical radiculopathy. (ii) If the examiner determines that the Veteran's hand disorder is peripheral neuropathy, the examiner should opine as to whether it is at least as likely as not (50 percent of greater probability) that the disorder is related to the Veteran's in-service exposure to herbicide agents. * In reaching these opinions, the examiner should consider and address the Veteran's statements regarding the onset of his musculoskeletal symptoms during active duty service as well as his statements as to why he did not seek medical attention for those symptoms during service. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, Associate 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.