Citation Nr: 21063571 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-17 603 DATE: October 14, 2021 ORDER Entitlement to service connection for a bilateral wrist disability is denied. Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A bilateral wrist disability is not shown. 2. A back disability is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active duty service with the U.S. Air Force from May 1992 to March 1993, September 17, 2001 to September 30, 2001, from March 2002 to September 2002, from November 2002 to May 2003, from May 2004 to September 2004, and from January 2011 to October 2011, with additional Airforce National Guard service. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing, the Veteran clarified that he was claiming service connection for a bilateral wrist disability. The Board has therefore recharacterized the issue on appeal to more accurately reflect the Veteran's contentions. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient 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. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a bilateral wrist disability 2. Entitlement to service connection for a back disability The Veteran seeks service connection for a bilateral wrist disability and a back disability. He contends that his current back and bilateral wrist disorders were caused by general wear and tear incurred in the performance of his duties as a civil engineer during service. The Veteran described engaging in construction work and plumbing work that involved a lot of manual labor, climbing and crawling. Reportedly, he was treated in service for the claimed disorders with muscle relaxers and with icing. The Veteran reported using bilateral wrist braces and occasionally using a back brace for lifting. The service treatment records fail to document a back or wrist disability. On numerous physical examinations and reports of medical history, including in September 1991, November 1997, October 2005, May 2010, August 2011 and May 2012, the Veteran denied a history of wrist pain, back trouble, recurrent back pain or any back problems, and his spine and upper extremities were clinically evaluated as normal. After service, treatment records since 2014 reflect complaints of multiple joint pain, including wrist pain, along with an assessment of arthralgia, possibly due to osteoarthritis and fibromyalgia. VA treatment records since 2017, noted complaints of low back pain. Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has a wrist or back disability. While the Veteran testified to using wrist and back braces, he has not indicated that he has been provided treatment at a VA facility for the claimed condition or identified private treatment records regarding the claimed disorders. Under VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.:). See, too, Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). In the absence of any competent evidence of a diagnosis of a back or bilateral wrist disability, the Board must conclude the Veteran does not suffer from such disability. Here, the presence of functional impairment in earning capacity due to pain is not shown and, thus, the presence of disability is not shown at any time during the appeal period. Without competent evidence of a diagnosis, the Board must deny the Veteran's claims. See Degmetich v. Brown, 8 Vet. App. 208 (1995). Simply stated, the best evidence in this case provides evidence against the existence of a back or bilateral wrist disability at any time during the period on appeal. The Board has considered the Veteran's assertions regarding the existence of a back disability and bilateral wrist disability. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, his statements do not rise to a level of competency to offer an opinion as to the existence of a current diagnosis or etiology. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining the etiology of the Veteran's claimed back and bilateral wrist disorders requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have training, expertise, or skills needed to make such a determination. As a result, the probative value of his lay assertions is low. The Board notes that the Veteran was not afforded VA examinations for his claimed back disability and bilateral wrist disorder. As there is no evidence of a diagnosis of a disability, much less one associated with service, the claims do not meet the requirements for obtaining a VA medical examination. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a back or bilateral wrist disability. The benefit-of-the-doubt rule does not apply and the claims must be denied. See 38 U.S.C. § 5107 (b); See Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran seeks service connection for residuals or a right knee injury incurred in service. The service treatment records show that in November 1992, the Veteran injured his right knee while playing football. He was diagnosed with right knee contusion/strain. Imaging studies showed no fracture. The Veteran underwent a VA examination in September 2017. The Veteran reported injuring his right knee in 2011 when he stepped into a ditch while stationed in Afghanistan. The examiner diagnosed knee arthritis, tendonitis/tendinosis. In an addendum opinion report in February 2018, a VA examiner reviewed the claims file and correctly noted that the history of a right knee injury provided by the Veteran in September 2017 was inaccurate as the service treatment records showed that it was the left, not right knee, that was injured jumping across a ditch while stationed in Afghanistan in 2011. The examiner, however, did not address whether the etiology of the Veteran's right knee disability. Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, additional development to obtain an adequate medical nexus opinion in this matter is necessary. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran claims service connection for bilateral hearing loss. Reportedly, he initially noticed impaired hearing while stationed in Iraq in 2004. He related excessive noise exposure during the performance of his duties as a utilities system journeyman from jet engine, explosions, firearms and sirens. Here, the Board finds an additional VA examination and medical opinion is warranted based on Veteran's competent testimony that his hearing loss has worsened. The Board notes that his hearing loss was last evaluated in a September 2017 examination, at which time he did not meet the criteria for hearing loss in either ear pursuant to 38 C.F.R. § 3.385. Notably, the VA examiner at that time diagnosed bilateral sensorineural hearing loss and opined that it was at least as likely as not that hearing loss was caused by or a result of an event in military service because the Veteran's military occupational specialty had a moderate probability of noise exposure from explosions, jet engine noise and firearms. VA treatment records after 2017, reflect a diagnosis of bilateral sensorineural hearing loss, along with a history significant for military noise exposure. He has been fitted with hearing aids since he was last examined by VA. Given that approximately four years have passed since the last VA examination and as there is an indication that the Veteran may have bilateral hearing loss for service connection purposes, remand is required to afford the Veteran a contemporaneous examination to determine whether the Veteran meets the diagnostic criteria for hearing loss. Allday v. Brown, 7 Vet. App. 517, 526-27 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. If possible, the Veteran should submit these records (if any) himself. 2. Forward the claims file to the February 2018 VA examiner, if available, for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner determines that one is necessary to provide a reliable opinion. If an examination is necessary, one must be provided. The examiner is asked to determine whether it is at least as likely as not (50 percent probability or more) that a right knee disability had onset or is otherwise related to any aspect of the Veteran's active service, to include the November 1992 right knee contusion/strain? Please explain why or why not. The examiner should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. 3. Schedule the Veteran for a VA examination to determine whether he has hearing loss in accordance with VA standards. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.