Citation Nr: 21071081 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-22 505 DATE: November 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a low back disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his current bilateral hearing loss symptoms began during his active service. 2. Resolving reasonable doubt in the Veteran's favor, his right knee disability is at least as likely as not related to his active service. 3. Resolving reasonable doubt in the Veteran's favor, his low back disability is at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. 3. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2013 and December 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran and his spouse testified at a videoconference hearing before a Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In September 2020, the Veteran was notified that the VLJ who held his hearing had retired and was offered the opportunity to appear for another hearing. As the Veteran did not respond or request another hearing, the Board assumes that he does not wish to appear for another hearing. In April 2019, the Board reopened the Veteran's claim for service connection for bilateral hearing loss and remanded the remaining issues on appeal for additional evidentiary development. The Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the full grant of benefits sought herein, any deficiency in notice or assistance is deemed harmless error. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service Connection Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b) and Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). 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 (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski 1 Vet. App. 49 (1990). Bilateral Hearing Loss Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran's claim for service connection to bilateral hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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. In the current appeal, the Veteran contends that he has bilateral hearing loss related to his military service, when he worked as motor vehicle operator in an artillery unit and was exposed to gunfire. He reported additional noise exposure from jet engines and flight line noise while attached to an air wing. See August 2014 Statement in Support of Claim and December 2014 Notice of Disagreement. He describes bilateral hearing loss since service, and his statements are credible and consistent with his service. The Board has no reason to doubt the credibility of his statements and concludes that there has been continuity of hearing loss symptoms since service. 38 C.F.R. § 3.303(b). The Veteran has bilateral hearing loss per 38 C.F.R. § 3.385. See December 2014 VA examination (which shows speech recognition scores of 88 percent bilaterally). A November 2012 VA examination report included the Veteran's reports of military noise exposure from weapons fire and flight line noise, but found that it was less likely than not that the Veteran's hearing loss was related to his military service because the Veteran did not have bilateral hearing loss for VA purposes at the time. A private audiological examination from November 2012 confirms bilateral hearing loss based on the Veteran's auditory threshold testing, but it is unclear whether the speech recognition scores were obtained using the Maryland CNC word list, which renders the examination insufficient for determining the presence of a current bilateral hearing loss disability. A private treatment record from November 2012 noted the Veteran's exposure to military noise and explosions for months and recorded his reports that he had present difficulty hearing. The December 2014 VA examination shows that the Veteran had bilateral hearing loss for VA purposes. The examiner reviewed the Veteran's claims file and recorded his military noise exposure of artillery fire, jet engine noise, and weapons fire. The examiner opined that it was less likely than not that the Veteran's hearing loss was due to, or caused by, his military service because his hearing thresholds were within normal limits at the time of his entrance and separation from service. The examiner did not otherwise address the Veteran's contentions regarding his in-service noise exposure and relied on the absence of a significant threshold shift and normal hearing at separation in providing the negative opinion. Following the April 2019 Board remand, an additional VA examination was obtained in November 2019. The examiner opined that the Veteran's bilateral hearing loss was less likely than not related to his military service because there were no reports of complaints of, or treatment for, hearing loss in the Veteran's service treatment records (STRs), and there was no significant threshold shift for either ear. The examiner noted the Veteran's reports of noise exposure during military service and recognized the relationship between noise exposure and auditory damage but did not specifically address his in-service noise exposure in providing an opinion. The examiner only stated that there was not a nexus between the Veteran's auditory damage and his military service and that, therefore, it was less likely than not that his hearing loss is related to his military noise exposure. The December 2014 and November 2019 negative nexus opinions are of little probative value, as the examiners appeared not to have taken the Veteran's lay statements about his noise exposure into account in providing the opinions. Instead, the examiners relied on the absence of documented hearing loss in service in providing a negative opinion. In this regard, the Board points out that the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiners, despite recording the Veteran's reports of noise exposure during service, did not accord his contentions much, if any, consideration in providing the requested opinions. Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record in the current appeal reflects acoustic trauma in service as well as the Veteran's competent and credible assertions of the onset of hearing loss symptoms in service continuing to the present, the evidence is at least evenly balanced in showing that his current bilateral hearing loss onset during service. Thus, the Board resolves all reasonable doubt in the Veteran's favor. As the evidence is in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Right Knee Disability In the current appeal, the Veteran contends that he has a right knee disability related to his military service. He reports injuring his right knee in 1970 when he fell off a truck while unloading ammunition and landed on his right side, including on his right knee. First, the Board observes that the Veteran has been diagnosed with right anterior cruciate ligament (ACL) tear with mild instability, right meniscal tear and right knee degenerative arthritis as shown on his December 2012 and November 2019 VA examinations. Thus, the first element of Shedden is established for this claim. On the Veteran's February 1969 entrance examination, he reported a history of torn ligaments, and the examiner noted a strain of his right knee in 1968 with no sequela. However, no right knee defect was noted on the Veteran's entrance examination. While he reported a history of a prior right knee strain on his entrance examination, the examiner found no sequela, and, as such, the Veteran is considered to have been in sound condition when examined. 38 U.S.C. § 1111. The Veteran's STRs do not include any complaints of, or treatment for, right knee problems during his service. However, the Veteran reports that, due to the nature of military service and the military mindset, he just "went on with [his] business" following his fall off an ammunition truck and that he needed to continue with his work of delivering ammunition. He reports trying to live with his bothersome right knee since his time in service until it became too painful to continue to ignore. See September 2015 Decision Review Officer Hearing Transcript. The Veteran has consistently related his right knee injury to his fall during his military service when seeking medical treatment. See, e.g., October 2012 Private Treatment Record and May 2014 VA Treatment Record. The Board finds credible the Veteran's assertions that his right knee problems began in service and have continued since then. The question thus becomes whether the Veteran's current right knee disability is related to his active service. Evidence against the claim includes a December 2012 VA examiner's opinion that it was less likely than not that the Veteran's right knee disability was caused by his service. The examiner recorded the Veteran's reports of an in service fall, but only stated that many years have passed since service and that consideration has to be given to post-service events. The examiner gave no consideration to the Veteran's contentions in providing this opinion, which renders the examination of very little probative value. Following the April 2019 Board remandwhich noted the inadequacy of the December 2012 VA examination due to the failure to address the Veteran's reports and medical history in providing an opinionthe Veteran was accorded another VA examination. The November 2019 VA examiner opined that it was less likely than not that the Veteran's right knee disability was caused by his service. In providing this opinion, the examiner noted an in-service right knee strain which was acute in nature. However, the only strain noted in the Veteran's STRs was the pre-service strain noted on his entrance examination without sequela. The examiner indicated that there was no evidence of chronicity of care and that a nexus has, thus, not been established. The examiner did not address the Veteran's contentions or explain why his reports of a continuation of symptoms beginning in service and continuing since then were discounted or not addressed. The failure of the examiner to address the Veteran's contentions and the reliance on incorrect facts about his service render the examination of little probative value. The evidence in favor of the claim includes a December 2020 positive private medical opinion and the Veteran's consistent reports as to the nature and origin of his right knee disability, as noted above. The examiner reviewed the Veteran's claims file and conducted an interview with him along with a review of relevant medical studies. The examiner recorded the Veteran's reports of the onset of his right knee problems and expounded upon the likely conditions he faced during service. The examiner opined that it was at least as likely as not that the Veteran's present right knee condition is the direct result of the injury he sustained when he fell off the back of the ammunition truck. The examiner discussed the mechanisms and development of the Veteran's current right knee disabilities and opined that his current right knee disabilities are consistent with his in-service injury. The Board finds that the December 2020 private opinion is more persuasive and fully supports the Veteran's claim. The private examiner fully considered the Veteran's contentions regarding his service and resulting right knee injury. The evidence clearly indicates a current disability, and the Veteran's reports of his onset of right knee symptoms are competent and credible. The VA examinations, while helpful in confirming the Veteran's current right knee disability, failed to consider adequately his contentions in providing opinions. The December 2012 VA examiner failed to consider the Veteran's contentions in providing an opinion. The November 2019 VA examination report discounted the Veteran's reports relating to chronicity of symptoms and failed to consider or address his contentions. Accordingly, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's diagnosed right knee disabilities are related to his service and affords him the benefit of the doubt in this regard. Service connection for a right knee disability is, therefore, granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Low Back Disability In the current appeal, the Veteran contends that he has a low back disability related to his military service. He reports injuring his back when he fell on a metal pipe and fellow servicemembers fell on top of him when trying to rush out of the showers during basic training. He also reports injuring his back in the same incident that he injured his right knee (when he fell off an ammunition truck) and asserts that the repetitive lifting required in service caused further pain to his back. First, the Board observes that the Veteran has been diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and lumbar spine degenerative disc disease, , as shown on his February 2019 VA examination. Thus, the first element of Shedden is established for this claim. The Veteran's STRs do not provide any complaints of, or treatment for, any low back problems during his service. The Veteran's February 1969 entrance examination did not include any notations of lumbar spine defects. A June 1969 entry includes a notation of lordosis, with no further explanation or further occurrence. The Veteran's May 1972 separation examination indicated no defects, and he did not report any problems with his lower back. As noted above, he reports that he felt he could not seek out treatment or be seen as complaining, especially during basic training, and that he instead continued to suffer silently with back pain. He reports that he has continued to experience back pain and back troubles since his time in service through to the present. He has consistently related his low back disability to his incident during his military service when seeking medical treatment. See, e.g., May 2014 VA Treatment Record. The Board finds his assertions that his low back problems began in service and have continued since then to be competent and credible. Accordingly, the question becomes whether the Veteran's current low back disability is related to his active service. There is evidence both in favor of, and against, this matter. The evidence against the claim includes a November 2019 VA examination which was obtained following the Board's April 2019 remand. The examiner opined that it was less likely than not that the Veteran's low back disability was caused by his military service, as there was no documented evidence of a back strain or back pain during service caused by the reported incident or by in-service heavy lifting. The examiner noted that the Veteran's separation examination did not include any complaints, or diagnosis of, a low back disability and opined that the Veteran's current low back disabilities are consistent with the normal aging process. Despite recording the Veteran's reports of an in-service incident, the examiner gave no consideration to the Veteran's contentions, which renders the opinion of very little probative value. The evidence in favor of the claim includes a December 2020 positive private medical opinion and the Veteran's consistent contentions regarding the nature and origin of his low back disability, as noted above. The examiner reviewed the Veteran's claims file and conducted an interview with the Veteran along with a review of relevant medical studies. The examiner recorded the Veteran's reports of the onset of his low back problems and expounded upon the likely conditions he faced during service, including why he might not have reported any back problems due to the military mindset. The examiner opined that it was at least as likely as not that the Veteran's present low back disability is the direct result of the injury he sustained when he fell on a metal pipe as well as from the fall off of the ammunition truck and repetitive lifting. The examiner opined that the Veteran's current low back disability is consistent with his injuries in service and is the direct result of his military service. The Board finds that the December 2020 private opinion is more persuasive and fully supports the Veteran's claim. The private examiner fully considered the Veteran's contentions regarding his service and resulting low back injury. The evidence clearly indicates a current low back disability, and the Veteran's reports of the onset of symptoms is found to be competent and credible. The November 2019 VA examination, while helpful in confirming the Veteran's current low back disabilities, failed to consider adequately his contentions in providing an opinion. The November 2019 VA examination report failed to consider or address the Veteran's contentions and discounted his reports regarding the nature of his service and why he was not seen for the back pain he was experiencing in service. In contrast, the December 2020 gave full consideration to the conditions of the Veteran's service and his contentions regarding the nature and onset of his low back disability. Thus, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's diagnosed low back disabilities are related to his service and affords him the benefit of the doubt in this regard. Service connection for a low back disability is, therefore, granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.