Citation Nr: 21067157 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-02 126 DATE: November 3, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to an increased evaluation in excess of 20 percent for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1994 to August 1998, and again from December 2011 to January 2013, to include a deployment to Operation Enduring Freedom in Bagram, Afghanistan from March 2012 to December 2012. The Veteran also served in the Navy Reserve between and after the two active-duty periods, retiring from service in May 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a Board hearing with the undersigned Veterans Law Judge (VLJ) in December 2020. A copy of the hearing transcript is of record. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). In this case, the Veteran indicated during his hearing with the undersigned VLJ that he is gainfully employed as a state corrections officer, and furthermore, he has never asserted that his service-connected disabilities prevented him from seeking employment. There is no further lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board thus finds that TDIU and SMC are not inferred by the record, and as such will not be discussed. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability, to include as secondary to the right knee disability, is remanded. The Veteran filed a claim for direct service connection for his right knee in January 2016, and also for his left knee, saying that his left knee disability is secondarily due to the compensation required in his gait from his right knee disability. The Board also notes that the Veteran had a right knee condition noted at service entry and considered a preexisting condition, and also that condition appears to have resolved prior to service entry. The Veteran has asserted in written statements and also during testimony before the undersigned VLJ in December 2020 that the left knee disability is secondary to the right knee disability. The Board notes the Veteran received a VA examination for his claim knee disabilities in May 2016. However, the VA examiner who provided the negative opinion for service connection noted the preexisting condition and stated it was not related to the current diagnosis of knee degenerative joint disease, which is the incorrect standard for a preexisting condition noted at service entry. As such, the Board considers that VA examination and opinion to be inadequate, and remand is required to evaluate the two knee disabilities under the correct medical and legal standards. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A disability can be service-connected on a secondary basis if proximately due to, or the result of, a service-connected condition. See 38 C.F.R. § 3.310(a). In order to establish entitlement to service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board also takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. §§ 3.304, 3.306(b). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Here, the Veteran's medical records indicate a right knee condition existed prior to service. On a 1994 service entrance examination, there is a notation for a right knee cartilage condition, considered due to a high school wrestling injury. When the Veteran was separated from his initial period of service in June 1998, the examination made no mention of a right knee condition. During the Veteran's second period of active duty, service examination notes make no mention of a right knee condition. Furthermore, there is no mention of a secondary service connection analysis for the left knee as related to the right knee. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not had an adequate VA compensation and pension examination for his claimed right knee and left knee disabilities. Therefore, a remand is required to obtain the requisite VA examination and opinion for service connection for the claimed disabilities, to include as due to or aggravated during service. 3. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from diseases and injuries encountered as a result of or incident to military service and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran is seeking an increased rating for his service-connected bilateral hearing loss, currently rated noncompensable from January 19, 2013. The Veteran last received a valid VA examination for his bilateral hearing loss in May 2016, and the Veteran asserts that his service-connected bilateral hearing loss has worsened. The Board finds that a new examination is appropriate because of the Veteran's assertion during his Board testimony that his hearing is worse than the evaluation from May 2016 indicates. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Thus, a new VA examination is required to ascertain the current degree of the Veteran's hearing loss disability. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. 4. Entitlement to an increased evaluation in excess of 20 percent for a left shoulder disability is remanded. The Veteran last received a VA examination for his service-connected left shoulder in May 2016. During the Veteran's hearing with the undersigned VLJ, he testified that his left shoulder had worsened to a great degree since his last VA examination, that it was now "useless," and that he couldn't raise his left arm above his waist. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations of movement he endures on a daily basis. The Veteran's last formal VA examination for his left shoulder was in May 2016, over 5 years ago at the time of this Board remand. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran submitted medical records after his December 2020 hearing with the undersigned VLJ that indicate worsening of his left shoulder disability. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). In addition, since the Veteran's left shoulder disability was last evaluated in a VA medical examination, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). This type of joint testing was not accomplished during the Veteran's most recent VA examination in May 2016; accordingly, further VA examination is warranted. The Board notes that the Veteran reports flare ups of his left shoulder disability. The examiner is reminded that when a Veteran reports flare ups of any disability, the examiner is asked to provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). A functional loss results when ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance" is inhibited. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board notes from the Veteran's lay statements and Board testimony that his left shoulder pain is chronic and severe, and that he has had to take increasing amounts of pain-relievers for his shoulder pain. The Board also notes on February 7, 2021 that a substantial revision to 38 C.F.R. §§ 4.71a & 4.73, the schedule of ratings for musculoskeletal injuries and muscle injuries, respectively, took effect. 85 Fed. Reg. 76453 (Nov. 30, 2020). Part of the changes include revisions to Diagnostic Code 5201, arm limitation of motion, the diagnostic code currently used to rate the Veteran's left shoulder. Because the Veteran's claim originated prior to this change, the RO is reminded that either the old criteria or the new criteria can be used, whichever is more favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for the appropriate VA examination to determine the nature and etiology of the Veteran's right knee and left knee disabilities. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. The examiner should describe the nature and extent of the Veteran's claimed right knee and left knee conditions. After reviewing the claims file and examining the Veteran, the examiner should opine to the following for the right knee, to include the possibility of aggravation of a noted preservice condition: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran has a right knee disability, and if so, whether it is at least as likely as not (fifty percent or greater probability) that such disability is related to service, or is otherwise related to any in-service disease, event, or injury? If the answer to that question is no, then the examiner is requested to opine whether there is clear and unmistakable evidence that the Veteran had a right knee condition upon his entry into service, and if so, whether it was clear and unmistakable that such right knee disability was not aggravated during service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. In offering this opinion, it should be considered that the Veteran has credibly testified at his December 2020 Board hearing that he did have a right knee condition prior to service as indicated in the foregoing entry examination, and that he was cleared for service by his military examiner. Clear and unmistakable evidence means evidence that is undebatable or that cannot be mistaken or misunderstood. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. For the Veteran's left knee disability, the examiner should answer the following questions, and also keep in mind the use of the word "aggravation" is in a different context for secondary service connection below than it is for the preexisting condition, previous: a) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed left knee disability had its onset in service or is otherwise related to any in-service disease, event, or injury? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the claimed left knee disability was caused by any of the Veteran's service-connected disabilities, to include the right knee disability? c) If the service-connected disability did not cause the claimed left knee disability, is it at least as likely as not (a fifty percent probability or greater) that the claimed left knee disability was aggravated by the service-connected disability? d) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the claimed left knee disability by the service-connected disability. Attention is invited to the Veteran's reports and statements of chronic pain in his bilateral knees. The Board takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. For the Veteran's bilateral hearing loss increased rating claim, schedule the Veteran for an audiological examination to determine the nature and severity of his service-connected bilateral hearing loss disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should note that the claims file has been reviewed. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. For each ear, the examiner is asked to specifically record the decibel loss at the 1000, 2000, 3000, and 4000 Hz frequencies, and should provide results of a Maryland CNC word recognition test. The examiner should also address any functional impairment resulting from the Veteran's hearing loss and its effects on his ordinary activities. 4. Schedule the Veteran for a VA examination by an examiner with orthopedic expertise to determine the current nature and severity of his service-connected left shoulder disability, to include all orthopedic and neurologic manifestations. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. For the examination provided for the left shoulder disability, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both of the joints in question. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-ups, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate informationi.e. frequency, duration, characteristics, severity, or functional lossregarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. When adjudicating the issue, attention is invited to the revised 38 C.F.R. § 4.71a criteria for musculoskeletal disabilities, including the Veteran's left shoulder, and the Veteran should receive the benefit of whatever criteria, old or revised, that provides a greater rating. 5. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.