Citation Nr: 21065095 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-07 338 DATE: October 25, 2021 ORDER Entitlement to service connection for a lumbar spine disorder, to include low back pain and degenerative arthritis of the spine disorder, as secondary to service-connected bilateral knee disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and unspecified anxiety disorder, as secondary to service-connected disabilities is granted. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for an acquired psychiatric disorder for the purpose of establishing eligibility to treatment under 38 U.S.C. § 1702 is dismissed. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his lumber spine disorder is related to his service-connected bilateral knee disorder. 2. Resolving all doubt in the Veteran's favor, his acquired psychiatric disorder is related to his service-connected disabilities. 3. Resolving all doubt in the Veteran's favor, his right ear hearing loss is related to his in-service noise exposure. 4. The grant of service connection for depressive disorder and unspecified anxiety disorder is a greater benefit than service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702; the issue in controversy is resolved. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disorder, to include low back pain and degenerative arthritis of the spine, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and unspecified anxiety disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The appeal as to the issue of service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is moot. 38 U.S.C. §§ 1702, 7105; 38 C.F.R. § 3.384. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the case for additional development and it now returns for appellate review. While on remand, the RO granted the issues of entitlement to service connection for a bilateral knee disorder, lumbar spine disorder, left ear hearing loss, and peritoneal adhesions, and, as the full benefit sought on appeal has been awarded, such issues are no longer before the Board. 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, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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 lumbar spine disorder 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his current lumbar spine disorder and acquired psychiatric disorder are related to service. In the alternative, he contends that such disabilities are related to his service-connected disabilities. As will be discussed below, the evidence of record reflects that the Veteran's lumbar spine disorder is related to his service-connected bilateral knee disorder, and his acquired psychiatric disorder is due to his service-connected disabilities. Accordingly, the Board herein grants service connection for such disabilities on a secondary basis. Therefore, it is not necessary to address any alternative theory of entitlement. See, e.g., Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). The Board notes that the Veteran has a current disability of the lumbar spine. In this regard, in May 2011, the Veteran's private physician, Dr. P.J.Y. diagnosed the Veteran with low back pain and degenerative arthritis of the spine disorder. In an October 2020 VA examination diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine disorder. However, later that same month and in November 2020, VA examiners indicated that the Veteran did not have a lumbar spine disorder. After resolving all doubt in the Veteran's favor, the Board finds that he has a current disability of the lumbar spine. The Veteran also has a current acquired psychiatric disorder, to include depressive disorder and unspecified anxiety disorder. See February 2021 private examination. As such, the remaining question is whether the Veteran's current lumbar spine disorder is due to his service-connected bilateral knee disorder, and whether his acquired psychiatric disorder is due to his service-connected disabilities. With regard to the Veteran's lumbar spine disorder, the October 2020 and November 2020 VA examiners did not provide an opinion as to whether the Veteran's lumbar spine disorder was secondary to his service-connected bilateral knee disorder. However, in a May 2011 private opinion, Dr. P.J.Y. related the Veteran's lumbar condition to his claimed bilateral knee disorder. In this regard, Dr. P.J.Y. explained that, subsequent to the Veteran's knee injuries, he developed persistent and progressive low back pain after his knee injuries, which intensified over the years. The Veteran did not specifically recall a direct injury to his low back and the proximity of onset suggested that the low back pain was secondary to chronic and constant adaptation to altered gait and weight shifting associated with the bilateral knee injury. Dr. P.J.Y. also noted that the Veteran had degenerative joint disease of the lumbar spine emphasis lumbosacral which is more likely than not directly and causally related to constant and chronic adaptation to the altered gait and weight shifting associated with injuries to the bilateral knees. With regard to the Veteran's acquired psychiatric disorder, in February 2021, the Veteran's private psychologist, Dr. S.F. concluded that such disorder was due to his service-connected disabilities. In this regard, Dr. S.F. stated that the Veteran's disorder was more likely than not secondary to his service-connected peritoneal adhesions, appendectomy, bilateral knee disabilities, and anterior truck surgical appendectomy scar. As rationale, Dr. S.F. explained that, based on the Veteran's interview, medical record review, recent mental health evaluation, and medical literature, the Veteran's symptomatology was consistent with depressive disorder due to chronic pain syndrome with major depressive-like episodes and unspecified anxiety disorder. Moreover, she stated that such disorders are reported and recognized to be secondary to the Veteran's service-connected disabilities. Consequently, the Board accords great weight to the May 2011 and February 2021 private opinions as they considered the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Additionally, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Moreover, there are no opinions to the contrary. Based on the foregoing and after resolving doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder and lumbar spine disorder is warranted. 3. Entitlement to service connection for right ear hearing loss The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. As an initial matter, the Board finds the competent evidence of record confirms that the Veteran has a current diagnosis of right ear hearing loss for VA purposes. See August 2020 VA examination report. Additionally, VA has conceded in-service noise exposure. Therefore, the remaining inquiry is whether the Veteran's right ear hearing loss is due to his acknowledged in-service noise exposure. In this regard, in a private May 2011 opinion, Dr. P.J.Y. concluded that right ear hearing loss was more likely than not directly and causally related to the Veteran's military service. As rationale, Dr. P.J.Y. explained that the Veteran was exposed to the acoustic trauma of aircraft engine and flight line noises while in service, and he suffered from progressive hearing loss. Therefore, Dr. P.J.Y. found that it was more likely than not that the Veteran's hearing loss was related to his in-service acoustic trauma. In December 2011, the Veteran was afforded a VA examination. At such time, the examiner found that the Veteran had normal hearing for VA purposes. However, the VA examiner opined that it was at least as likely as not that the Veteran's hearing loss was caused by or a result of an event in military service. As rationale, the examiner explained that the 1985 audiogram at entrance was within normal limits at all frequencies and separation audiogram displayed mild high frequency loss at 4Hz in the left ear. In August 2020, a VA examiner indicated that the Veteran had right ear hearing loss for VA purposes. However, the examiner concluded that it was less likely than not that the Veteran's right ear hearing loss was due to his military service. As rationale, the examiner explained that there was a temporary threshold shift on a July 1987 audio examination, which provided objective evidence of conceded noise exposure. The examiner also stated that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which was objective evidence of no permanent auditory damage on active duty from conceded noise. The examiner further explained that, there was no report of complaint/treatment for hearing decrease in his service treatment records or at separation. Although noise exposure was conceded and the relationship of noise, auditory damage and hearing loss is well-established, the examiner found that auditory damage and hearing loss was not conceded based on noise alone. In this regard, the examiner stated that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. Therefore, it was concluded that the evidence was against a nexus and it was less likely than not that the hearing loss was related to his military noise exposure. Based on the foregoing, the Board finds that evidence is in relative equipoise as to whether the Veteran's right ear hearing loss is related to service as the May 2011 private opinion, December 2011 VA opinion, and August 2020 VA opinion reflects consideration of all relevant facts and the examiners provided a sufficient rationale for the conclusion reached. Therefore, the Board will resolve all doubt in the Veteran's favor and find that his right ear hearing loss is related to his in-service noise exposure. Consequently, service connection for such disorder is warranted. 4. Entitlement to service connection for an acquired psychiatric disorder for the purpose of establishing eligibility to treatment under 38 U.S.C. § 1702 As indicated above, service connection for an anxiety disorder and depressive disorder is warranted. As such, the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 1702 is moot as the Veteran will be afforded equal or greater access to VA treatment by virtue of his now-established award of service connection for an anxiety disorder and depressive disorder. Therefore, the appeal as to this specific issue is moot and dismissed. 38 U.S.C. § 7105. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.