Citation Nr: 21071281 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-22 862 DATE: November 30, 2021 ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a right shoulder disability is denied. Service connection for a right lower extremity disability, as secondary to lumbosacral spine, is denied. REMANDED An initial compensable rating for service-connected hearing loss prior to November 25, 2020; and in excess of 50 percent thereafter. FINDINGS OF FACTS 1. The Veteran's left knee disability is not related to his military service. 2. The Veteran's right knee disability is not related to his military service. 3. The Veteran's right shoulder disability is not related to his military service. 4. The Veteran does not have a right lower extremity disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right lower extremity disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to November 1997. The case is on appeal from a June 2015 rating decision. The case was most recently before the Board in July 2019. At that time, the Board remanded the claims of service connection for a low back condition, a right lower extremity disability as secondary to low back condition, left and right knee conditions, a right shoulder condition, and the issue of an initial compensable rating for hearing loss. While the case was in remand status, in a July 2021 rating decision, the RO granted service connection for lumbosacral strain. As the benefit sought has been granted in full, the issue is no longer on appeal. In the July 2021 rating decision, the RO also increased the Veteran's hearing loss rating to 50 percent rating, effective November 25, 2020. As this constitutes a partial grant of benefits, the issue remains on appeal. Additional evidence was received subsequent to the most recent supplemental statement of the case (SSOC) issued in July 2021. As the evidence is not pertinent to the claims decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service 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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis 1. Service connection for a left knee disability. 2. Service connection for a right knee disability. The Veteran contends service connection for his bilateral knee disability is warranted as it was incurred while on active duty service. The Veteran asserts that his bilateral knee disabilities are the result of multiple incidents during service, to include a 1986 motorcycle accident and an accident after falling off a ladder in 1987. See Board hearing transcript, p.5. Initially, the Board notes that the Veteran has current diagnoses of left knee strain and right knee meniscal tear. See June 2021 VA examination report. As such, the current disability element of the claims has been met. Service treatment records (STRs) show that the Veteran was sound at entrance. See November 1977 entrance medical examination. During a November 1984 medical examination, the Veteran reported that knees hurt "once in a while." The Veteran also ticked the box indicating pain and swollen or painful joints. In May 1985, the Veteran sought treatment for a left knee injury which was assessed as a knee strain. The health provider noted increased pain during full extension. Crutches were provided to help with ambulation. In July 1986, the Veteran was involved in a motorcycle accident when he rolled over on the pavement multiple times after being hit by a car. His injuries were assessed as contusions. The assessment report does not show complains of knee pain or injuries at that time. Thereafter, in May 1987, the Veteran fell 30 to 35 feet off a ladder landing on his left foot. The Veteran underwent surgery for left distal fibular fracture with displacement of the left ankle mortise. The inpatient summary does not show complaints, treatment, or reports of bilateral knee pain. In light of the November 1984 medical examination and the May 1985 progress notes, both reflecting that the Veteran complained of bilateral knee joint pain and left knee strain, the in-service element of the claims has been also established. The question for the Board is, therefore, whether a nexus between the in-service events noted above and the current knee disabilities exists. Post-service treatment records reflect that the Veteran has received treatment for a right knee disability. See private treatment records from Lakewood Primary Care Associates dated from November 2009 to February 2015. In that regard, the Veteran reported "a twisting injury" in August 2009, that caused "quite a bit of pain, some intermittent swelling and difficulty with his ADLs", which he treated with over-the-counter medication. In November 2009, the Veteran reported that his right knee occasionally bothers him and denied associated clicking, instability, locking, popping, and swelling. Thereafter, the private provider noted that the Veteran "currently has trouble with twisting activities and walking for longer periods of time." See June 10, 2010 progress notes. The Veteran underwent a right knee arthroscopy in October 2010 at St. Joseph Hospital. The Veteran continued to report occasional symptoms. See progress notes dated on September 17, 2012 (patient states stabbing pain to right knee for 2 months; previous right knee symptoms 2 years ago); and November 24, 2014 (reports occasional or usual knee pain). In the July 2019 decision, the Board noted that information shown in connection with this claim indicates the Veteran received medical treatment at Trinity Hospital-St. Joseph in New York for the claimed knee disabilities. In compliance with the foregoing, in a November 2019 letter, the RO requested from the Veteran to complete the required VA Form 21-4142 (Authorization to Disclose information to the Department of Veterans Affairs) and 21-4142a (General Release for Medical Provider Information to the Department of Veterans Affairs) to assist the Veteran in obtaining those records. The Veteran was asked to submit the requested information in 30 days. Nothing was received within the time allotted. A second request letter from the RO was sent in February 2020. Again, the Veteran was asked to submit the requested information in 30 days. Nothing was received within the additional time allotted. With respect to this aspect of the claim, the Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the July 2019 Board's remand, the Veteran was afforded a VA examination in connection with his knee claims in June 2021. The examination report reflects that the Veteran first complained of bilateral swollen knee joint during a November 1984 medical examination, and later of left knee injury while playing baseball in May 1985. As for the right knee, the VA examiner, an orthopedic specialist, noted that besides the 1984 documented report of bilateral knee joint pain, STRs do not show other specific right knee injury or complaints until a post-service complaint in August 2009 when the Veteran reported occasional pain and swelling without a history of trauma, followed by a June 2010 report of a twisting injury to his right knee in 2009, which consequently resulted in an arthroscopy for debridement of the meniscus in October 2010. Upon review of the Veteran's records and history, the examiner stated that there is no evidence indicating that the current right knee condition manifested or was caused by an in-service injury or event. As for the left knee, the examiner noted that while STRs show the Veteran had a motorcycle accident in 1986, a fall in May 1987, and additional thigh pain noted in May 1992, there are no documented injuries referencing the left knee besides the 1985 left knee strain. The examiner also noted that per STRs, the May 1985 left knee strain was an acute episode which did not continue and resolved. He pointed out that there are no subsequent complaints of left knee pain for the remainder of the Veteran's service. The examiner indicated that the current diagnosis of left knee strain was issued during the examination based on subjective and objective evidence; however, the 1985 acute episode cannot be considered an early manifestation of the current left knee strain diagnosis. In sum, the physician opined that the left and right knee conditions were less likely than not incurred in, or caused by, the claimed in-service injuries. As rationale, the VA examiner discussed that while the Veteran complained of knee pain, described as "once in a while" during service, STRs are silent for injuries beyond such vague complaints. The examiner added that the Veteran's last periodic examination in 1994 does not reflect knee complaints. The physician pointed out that there is a significant gap between the Veteran's separation in 1997, until his documented report of "occasional right knee pain" in August 2009, and the August 2010 report of a twisting injury in or around "August 2009." Moreover, the examiner indicated that for both knees, the Veteran stated during the exam that he did not have significant symptoms until 2009. The Board has considered the entire medical and lay evidence of record, including the June 2021 VA examination and opinion from an orthopedic specialist as to the nexus element of the claim and finds that the Veteran's knee disabilities did not have their onset during service and are not otherwise related to service. In reaching this conclusion, the Board accords great probative weight to the June 2021 VA examination and opinion as to the nexus element of the claim. The opinion was not only issued by an orthopedic specialist in compliance with the Board's previous remand directives but is also supported by comprehensive rationale based on the Veteran's medical history, in-person physical examination, review of the entire medical records available, and by applying valid medical analysis upon consideration of the Veteran's particular circumstances. The examiner discussed the Veteran's contention and determined that his bilateral knee disability is not related to his military service. His opinion that the Veteran's current bilateral knee disability had its onset many years after his retirement from service (i.e., approximately 12 years) is well supported by the Veteran's own statements during the examination indicating that he did not have significant symptoms until the 2009 right knee twisting injury, and the private treatment records from Lakeshore Primary Care Associates, LLP which are silent for bilateral knee complains until August 2009, right around the time when the Veteran asserts he experienced a twisting injury in his right knee. Moreover, the competent medical evidence of record does not show that the Veteran has required treatment for a left knee disability following retirement from service. To that effect, the June 2021 VA examiner indicated that his in-service strain of the left knee was an acute episode that resolved and does not constitute an early manifestation of any currently diagnosed left knee strain. Ultimately, the Board notes that the VA examiner not only considered in-service events specifically addressing knee complains or reports, but also considered additional in-service events such as the 1986 motorcycle accident and the 1987 ladder fall accident. Nevertheless, by applying valid medical analysis the examiner found that these events did not result in knee injuries during service and did not contribute to any currently diagnosed knee disabilities. The Board determines the June 2021 VA opinion is clear and based on the evidence of record, including the STRs, as well as the Veteran's self-reports. Moreover, the opinion is found to be highly persuasive as it is consistent with the evidence of record and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's contention that his current left and right knee disabilities are related to service. However, the Veteran lacks the requisite expertise to render a medical opinion as to the etiology of his bilateral knee disability. This is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Accordingly, as the preponderance of the evidence is against the claim, the Veteran's left and right knee disabilities are not related to service. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for left and right knee disabilities is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 3. Service connection for a right shoulder disability. The Veteran also contends that service connection for a right shoulder disability is warranted as it had its onset during service. In support of his claim, the Veteran asserts that multiple in-service events marked the onset of his disability, to include a 1986 motorcycle accident in which he hurt his right shoulder. See hearing transcript, p.3. The Veteran has current diagnoses of right shoulder strain and right shoulder impingement syndrome. See June 2021 VA examination report. As such, the current disability element of the claim has been established. As to the in-service element of the claim, STRs reflect that the Veteran was sound at entrance regarding shoulder disabilities. In September 1982, the Veteran hurt his right shoulder while playing football and sought treatment for right shoulder pain which was assessed as an AC Joint contusion. During a November 1984 medical examination, the Veteran reported bilateral shoulder pain "once in a while." The health provider noted painful shoulder due to strain which the Veteran treated with aspirin. In July 1986, the Veteran was involved in a motorcycle accident in which he was hit by a car, fell, and rolled over multiple times on the pavement. The Veteran complained of right shoulder pain shooting down his right arms. Shortly thereafter, the Veteran was seen by a health provider who noted that all injuries had "pretty much resolved." Thereafter, STRs reflect multiple right elbow complaints without mention of right shoulder pain. A September 1994 periodic medical examination is silent for complains or reports of right shoulder pain or treatment. The Board finds that in light of the 1982, 1984, and 1986 complaints of right shoulder pain, the in-service element of the claim has been also established. As to the nexus element, post-service treatment records refect that the Veteran reported left shoulder pain in December 2005. His symptoms were diagnosed as left shoulder tendonitis. Nonetheless, private treatment records do not account for reports or treatment sought for right shoulder pain or disability. See Lakeshore Primary Care Associates, LLP treatment records. In its July 2019 decision, the Board noted that information shown in connection with this claim indicates the Veteran received medical treatment at Trinity Hospital-St. Joseph in New York for the claimed right shoulder disability. As previously noted, the Veteran did not submit the authorization requests for these records within the time allotted and despite the RO's efforts to obtain them. See 38 C.F.R. § 3.159(c)(1). Pursuant to the Board's July 2019 remand, the Veteran was afforded a VA examination in connection with this claim in June 2021. The VA examiner acknowledged the Veteran's in-service right shoulder contusions in 1982 while playing football and in 1986 as a result of a motorcycle accident. Upon the in-person examination, the examiner issued a separate diagnosis for right shoulder impingement syndrome. The examiner noted that per the Veteran's self-report, an MRI performed two weeks prior to the VA examination revealed degenerative changes of the rotator cuff on the right shoulder. The examiner, however, indicated that those private records were not available for review and that there is no other evidence of medical treatment for the Veteran's right shoulder. The VA examiner, an orthopedic specialist, opined that the claimed right shoulder disability was less likely than not incurred in, or caused by, the claimed in-service events. In support of the opinion, the physician stated that the Veteran's in-service right shoulder strains and contusions were acute only without evidence of chronicity as symptoms resolved. The examiner indicated that this is applicable to both the 1982 football injury and the 1986 motorcycle accident. The examiner further noted that while the Veteran endorses pain with lifting and repetitive activities on and off since 1984, his statements are entirely subjective with no medical documentation in their support and pointed out that even by considering the Veteran's subjective statements, his current right shoulder disability is not the natural progression of his in-service injuries. The examiner stated that there is no record of right shoulder problems between 1986 and 2021 and, therefore, a nexus cannot be established. The Board has considered the medical and lay evidence of record, including the Veteran's statement as to the continuity of symptoms ever since service. Nevertheless, the Board finds that the claimed shoulder disability is not related to the reported in-service events. The Board accords great probative weight to the June 2021 VA opinion with regard to the nexus element of the claim. The examiner discussed the Veteran's contention and determined that his right shoulder disability not only is not related to the 1982 football injury not the 1986 in-service motorcycle accident, but also clarified that the Veteran's current right shoulder condition does not resemble the natural progression of the documented in-service events. The examiner's opinion that the Veteran's right shoulder disability resolved without sequelae since 1986 is well supported by STRs showing no additional complains or reports of right shoulder pain at least since 1986 and private treatment records from Lakeshore Primary Care Associates, LLP, which do not reflect a right shoulder disability but only left shoulder pain and tendonitis. The Board finds the June 2021 VA opinion is clear and unequivocal and based on the evidence of record, including the STRs, as well as the Veteran's self-reports. Moreover, the opinion is found to be highly persuasive as it is consistent with the evidence of record and supported by a comprehensive rationale by considering the particular facts of this case. See Nieves-Rodriguez, 22 Vet. App. at 295. The Board acknowledges the Veteran's contention that his right shoulder disability is related to the reported in-service events. The Veteran lacks the requisite expertise to render a medical opinion as to the etiology of his claimed right shoulder condition and this is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1977. In sum, the preponderance of the evidence is against the claim. The Board determines the Veteran's right shoulder disability is not related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for a right shoulder disability is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 4. Service connection for radiculopathy of the right lower extremity as secondary to lumbosacral spine. The Veteran contends that service connection for radiculopathy of the right lower extremity is warranted as it is the result of his now service-connected low back condition. See September 2014 Application for Disability Benefits; July 2015 Notice of Disagreement (NOD); see also Board hearing transcript, p.3. As previously noted, service connection is now in effect for lumbosacral strain, the underling condition to which the Veteran attributes his claimed right lower extremity disability. With respect to this issue, private treatment records from Lakeshore Primary Care Associates do not reflect a diagnosis of radiculopathy of the right lower extremity. The records neither reveal reports of, or treatment sought for any right lower extremity disability, other than the Veteran's right knee condition. Pursuant to the Board's July 2019 remand, the Veteran was afforded a VA examination in connection with this claim. The examination report shows that the Veteran does not have a lower extremity disability, to include any peripheral nerves conditions nor radiculopathy. Physical examination revealed normal sensation testing for light touch of the right thigh, knee, lower leg, ankle, foot, and toes. A severity evaluation for lower extremities revealed that the Veteran's lower extremities nerves, to include the sciatic nerve are all normal. The VA examiner, an orthopedic surgeon, indicated that the Veteran does not have a diagnosis for a peripheral nerve condition as there are no related symptoms or physical findings. The examiner further noted that the Veteran does not have sciatica and that any leg pain recently reported could have been a muscle strain. The examination report also reflect that the Veteran denied radicular pain. In sum, the VA examiner opined that the claimed condition is less likely than not proximately due to, or the result of the Veteran's service-connected back disability. The examiner concluded that the physical examination conducted during the examination did not confirm a chronic diagnosis in light of the medical evidence of record and the in-person examination and stated that given the Veteran denied radicular pain during the examination, there is no nexus or plausible secondary relationship between the claimed disability and radicular pain. The VA examiner found no "chronic diagnosis." For VA compensation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Thus, evidence may show functional impairment, even without a diagnosis, such as pain alone. See Saunders, 886 F.3d at 1356. Notwithstanding the phrasing used by the VA examiner, the Board finds that, in this case, the VA examiner was still unable to find functional impairment of the right lower extremity not only based on a review of the medical evidence of record, but also after performing and in-person physical examination of the Veteran's lower extremities. This appear to be supported by the Veteran's statements during the exam denying radicular pain or symptoms and private treatment records from Lakeshore Primary Care Associates which are completely silent for right lower extremity symptoms and/or impairment. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. As previously noted, private treatment records dated from December 2005 to February 2015, do not account for a right lower extremity disability, other than the already addressed right knee disability. Additionally, the June 2021 VA examination report does not reflect that the Veteran has had a right lower extremity impairment at any time throughout the pendency of the appeal that is proximately due to, or aggravated by his service-connected lumbosacral strain. In sum, the record reflects that the Veteran has not had a current right lower extremity disability at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky, 26 Vet. App. at 94; McClain, 21 Vet. App. at 321. Here, the June 2021 VA examination and opinion is the most persuasive evidence as the examiner, after reviewing the Veteran's medical history and conducting an in-person physical examination and interview, did not find a right lower extremity disability. Additionally, the Board finds the record does not show any functional impairment associated with the right lower extremity. In fact, the June 2021 VA examiner noted that the Veteran denied radicular pain or symptoms, which in turn does not indicate any impairment in earning capacity. Accordingly, the first element of service connection has not been met in the present case. Without evidence of a current right lower extremity disability, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and service connection for a right lower extremity disability as secondary to service-connected lumbosacral strain is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND A higher compensable rating for service-connected hearing loss prior to November 25, 2020; and in excess of 50 percent thereafter. Pursuant to the Board's July 2019 remand directives, the Veteran was afforded a VA examination in November 2020, to ascertain the severity of his hearing impairment. The audiology examination report, on initial consideration, appears to reflect level VIII hearing impairment for the right ear, and level IX hearing impairment for the left ear. Such levels of hearing impairment correspond to a 50 percent rating evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In a July 2021 rating decision, the RO increased the Veteran's hearing loss from a noncompensable rating to a 50 percent rating effective November 25, 2020, the date the VA audiology examination was conducted. The Board notes that an effective date for an increased rating is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Here, while the November 2020 VA audiology examination report includes the Puretone thresholds and speech discriminations scores in which the RO seems to have relied on to increase the Veteran's hearing loss to a 50 percent rating, it is not clear whether the date of the examination is when the increase in severity is factually ascertainable. This is particularly so when the November 2020 VA examiner did not provide an opinion that could serve as retrospective guidance for the period prior to November 25, 2020. The Board notes that, during the examination, the Veteran reported "he usually reads lips [to understand others] but now with the masks on" it is difficult for him to do so. The foregoing seems to suggest that at the time of the November 2020 VA examination, the Veteran had been possibly already experiencing an increase in severity of his hearing impairment. However, the evidence of record is still not sufficient to determine when an increase in the Veteran's hearing impairment is factually ascertainable. For the reasons set forth above, the Board finds that a remand is warranted to obtain a retrospective opinion by a qualified medical professional to comment on the severity of the Veteran's hearing impairment throughout the entire period on appeal beginning on September 23, 2014, which is the effective date of service connection for hearing loss. The matters are REMANDED for the following action: Forward the entire claims file to a qualified medical professional, to include a copy of the reasons for remand set forth above, to provide a retrospective opinion with respect to the severity of the Veteran's hearing loss for the entire period on appeal beginning on September 23, 2014. This should include, as best as reasonably possible, the onset date of any increase shown in the November 2020 VA examination report. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.