Citation Nr: 21066140 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-18 825 DATE: October 28, 2021 REMANDED The issue of service connection for a left knee disability is remanded. The issue of service connection for a right knee disability is remanded. The issue of an increased rating for bilateral hearing loss is remanded. The issue of service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from October 1985 to February 1986 and from September 2001 to March 2003, with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) from an August 2013 rating decision. The Veteran testified before the Board at a hearing in July 2021. A transcript of the hearing has been associated with the claims file. Bilateral Knee Disability The Board finds that further development is necessary regarding the Veteran's claim of service connection for a bilateral knee disability. The Veteran contends that he experienced a bilateral knee injury during reserve service. At the July 2021 Board hearing he stated that during training for reserve service in 1999 he was participating in an operation that involved running over rocky terrain. He stated that he tripped causing his pants to rip and both of his knees to be bloodied. He stated that he was seen by a field medic and followed up with his private physician. He stated that he subsequently used knee braces and self-treated his bilateral knee symptoms, which have continued since the injury during training for reserve service to the present. He stated that he eventually sought treatment with two other private physicians for his bilateral knee injury, which included cortisone injections and two surgeries. The Veteran's wife also provided testimony at the hearing before the Board and stated that she recalls having the torn uniform pants repaired when the Veteran was injured during training for reserve service and that she has observed the Veteran experience continuing bilateral knee pain, self-treat his bilateral knee symptoms, and eventually seek medical treatment to receive cortisone injections and surgery. In July 2014, the Veteran submitted a certificate of training demonstrating that he attended training for reserve service in February 1999. In January 2015, the Veteran submitted a statement from a fellow servicemember. The servicemember stated that he witnessed the Veteran fall during a training exercise that involved running over rocky terrain. He stated that the Veteran's knees were bloodied and bruised, his pants were torn, and he was treated by a field medic. In April 2017, the Veteran submitted a statement from a second servicemember. The servicemember stated that during reserve service he participated in a training exercise with the Veteran that required running over extremely rugged terrain. The servicemember stated that he witnessed the Veteran fall and be unable to get up without assistance. He stated that the Veteran was taken to the first aid station for evaluation. The Veteran's private treatment records indicate that in November 2012 he was diagnosed as having a torn medial meniscus of the right knee, for which he underwent surgery in December 2012. In November 2016 private treatment records he is noted as having a complex tear of the medical meniscus of the right knee and joint effusion. In March 2017 private treatment records, one of the Veteran's private physicians noted that conservative treatment has failed, and injections were recommended. In April 2019 private treatment records, the Veteran's knee pain is noted to have improved with injections but that the injections have now worn off. In October 2019 private treatment records the Veteran complained of left knee pain. In March 2020 private treatment records, the Veteran is documented as undergoing total right knee arthoplasty and he was noted to have a history of knee pain being present for many years. The Board finds that the Veteran's private treatment records establish a presently diagnosed right knee disability, and are suggestive of a left knee disability. In view of this, and the other evidence indicative of an injury in service to which current disability may relate, the low threshold for obtaining a VA examination has been met in this case. Accordingly, a remand is necessary for the VA to properly fulfill its duty to assist in providing a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Bilateral Hearing Loss The Board finds that further development is necessary regarding the Veteran's claim of an increased rating for bilateral hearing loss. The Veteran contends that his bilateral hearing loss has worsened since his last VA examination. In the April 2017 VA Form 9, the Veteran asserted that his ability to hear has worsened, and during the July 2021 Board hearing, the Veteran asserted that his bilateral hearing loss has substantially worsened since his last VA examination in 2016. When evidence indicates that a service-connected disability is worse than it was at the time of a Veteran's most recent VA examination, as is the case here, it is within VA's duty to assist that he be afforded a new examination in order to accurately assess the current level of impairment. Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997). As such, a remand is necessary to obtain a new VA examination. Left Shoulder Disability The Board finds that further development is necessary regarding the Veteran's claim of service connection for left shoulder strain. During the July 2021 Board hearing, the Veteran provided testimony regarding his claim of service connection for a left shoulder disability. The Veteran stated that he injured his right shoulder during reserve service, for which service connection has been granted, and that his right shoulder disability caused overuse and injury of his left shoulder. The Veteran stated that his private physician explained that his left shoulder disability may be caused by his right shoulder disability. In July 2013, the Veteran underwent a VA examination regarding his bilateral shoulder disability. The Veteran was diagnosed as having bilateral shoulder strain. The VA examiner provided a positive nexus opinion regarding the Veteran's right shoulder strain; however, the examiner merely stated that the Veteran does not know the etiology for his left shoulder disability and does not know how the pain occurred. The Board finds that although the VA examiner provided a diagnosis of bilateral shoulder strain and acknowledged the left shoulder complaints in the opinion regarding the right shoulder, the examiner did not adequately provide an opinion regarding the Veteran's claim of service connection for the left shoulder disability. In March 2017 private treatment records, the Veteran is documented as having bilateral shoulder pain. The Veteran's private physician stated that regarding whether his left shoulder disability is caused by his right shoulder disability, protecting the right shoulder could lead to an increase usage of the left shoulder but that to what effect and degree are difficult to determine. The Board finds that the medical evidence indicates that the Veteran's left shoulder disability may be caused by his service-connected right shoulder strain. Thus, the Board finds that the low threshold for obtaining a VA examination opinion has been met in this case and a VA examination opinion regarding the Veteran's left shoulder disability was not adequately provided in the July 2013 VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). A remand is therefore necessary at this time. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his service-connected bilateral hearing loss. The claims folder should be made available to and be reviewed by the examiner. 2. Schedule the Veteran for an examination to determine the nature and etiology of a bilateral knee disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: (a.) Identify the diagnosis of any left knee disability; and right knee disability; (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's any left and/or right knee disability had its onset during service or is otherwise related to service, including a bilateral knee injury experienced during training for reserve service in 1999? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions as to the nature, onset, and continuity of such problems since service, including reserve service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. The examiner should also consider all lay statements submitted by the Veteran regarding his disability. 3. Obtain an addendum VA examination opinion to determine the nature and etiology of the Veteran's left shoulder disability. The claims folder should be made available to and be reviewed by the examiner. The examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's left shoulder disability: (a) had its onset during service; (b) or was caused by the Veteran's service connected right shoulder disability; (c) or was aggravated (increased in severity beyond its natural progression) by the Veteran's service-connected right shoulder strain? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions as to the nature, onset, and continuity of his shoulder problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. The examiner should also consider all lay statements submitted by the Veteran regarding his disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should 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). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.