Citation Nr: 21072860 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-33 346 DATE: December 6, 2021 REMANDED Entitlement to a compensable rating for the right tibial arthralgia with shin splints, status-post stress fracture right tibia for the appeal period prior to November 29, 2016, and in excess of 10 percent thereafter is remanded. Entitlement to a compensable rating for the left tibial arthralgia with shin splints, status-post stress fracture right tibia is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a bilateral knee disorder, to include chondromalacia and osteoarthritis, is remanded. Entitlement to service connection for a lumbar spine disorder with sciatica is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1982 to November 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing in the May 2017 Substantive Appeal to the Board (VA Form 9); however, in May 2021 correspondence the Veteran withdrew his hearing request. As such the Board will proceed with the merits of this appeal. In a June 2017 statement the Veteran argued the VA assigned a November 2016 effective date based on the date of a VA examination. The Veteran did not specify which condition he was referring to; however, the Board notes the only condition he has a November 2016 effective date is for the right tibial arthrologia. Unfortunately, the Veteran did not timely appeal an effective date claim as the December 2015 notice of disagreement (NOD) only addresses service connection claims and the evaluation for the right and left tibial arthrologia. As such an earlier effective date claim is not properly before the Board. The Veteran's claim of service connection for chondromalacia of the right and lower extremity has been recharacterized to include all disabilities related to the knees as reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to a compensable rating for the right tibial arthralgia with shin splints, status-post stress fracture right tibia for the appeal period prior to November 29, 2016, and in excess of 10 percent thereafter 2. Entitlement to a compensable rating for the left tibial arthralgia with shin splints, status-post stress fracture right tibia The Board finds that remand is warranted for additional development. A March 1983 rating decision granted service connection for the left tibial arthralgia with a noncompensable rating effective November 10, 1982. A September 2015 rating decision granted service connection for the right tibial arthralgia with a noncompensable rating effective December 2, 2014 under DC 5262. An April 2017 rating decision increased the right tibial arthralgia evaluation to 10 percent effective November 29, 2016. Currently both conditions are rated under DC 5262. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov.30, 2020). In particular, the rating criteria was changed for Diagnostic Code 5262 for which the Veteran's disability is currently rated. The most recent VA examination for these conditions were in November 2016. Review of the record does not show the provided examination has sufficient evidence to rate the Veteran's disability under the new rating criteria; therefore, the Board finds that a remand for a new examination is warranted. 3. Entitlement to service connection for bilateral hearing loss 4. Entitlement to service connection for tinnitus The Veteran contends that his bilateral hearing loss and tinnitus is related to service. Service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a hearing loss or tinnitus disability. Although the audiological examinations reflect hearing within normal limits, the Board notes the Puretone range for the 3000 and 4000 hertz went from 0 decibels (dB) at enlistment to 10 dB at service separation for the right ear. Also, the left ear went from 5 dB at enlistment to 10 dB at separation for the 4000 hertz. Post service, an August 2015 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner determined a hearing diagnosis could not be provided due to inconsistencies in responses. It was concluded the examination is not valid for rating purposes as the Veteran's CNC scores are not consistent with his hearing thresholds. For the tinnitus claim the examiner indicated the Veteran reported recurrent tinnitus beginning in service following a day of weapons training. The examiner did not provide an etiology opinion for the tinnitus as it was noted, inconsistencies during the test resulted in suspected non-organic hearing loss. An August 2017 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with bilateral sensorineural hearing loss. The examiner opined the Veteran's hearing loss was less likely than not caused by or the result of an injury in service. It was reasoned there was no evidence of any significant threshold shifts and hearing thresholds between the enlistment examination and the separation examination two months later. Both in-service examinations revealed hearing within normal limits. The examiner also diagnosed the Veteran with tinnitus. The Veteran alleged the onset began in service. It was opined the tinnitus is at least as likely as not a symptom associated with hearing loss as tinnitus is a known symptom of hearing loss. It was reasoned although the Veteran reports onset of tinnitus during military service, there is no evidence of report of recurrent tinnitus in his STR's and the enlistment audio and exit audio examination demonstrate no significant threshold shifts in either ear. The Board finds the August 2017 VA examination inadequate. In providing a negative opinion the examiner relied on the lack of abnormal in-service hearing examinations and tinnitus complaints. The absence of an in-service diagnosis or complaint is not dispositive; the question is whether the Veteran's hearing loss and tinnitus disability are related to service. Furthermore, the Veteran alleged the tinnitus began after a day of weapons training. On remand the VA examiner must consider the Veteran's lay statements. 5. Entitlement to service connection for a bilateral knee disorder The Veteran claims his right and left knee disabilities are related to service. Specifically, in a May 2017 statement he alleged his knees never healed from the in-service leg injury. In the September 1982 service separation report of medical history, the Veteran reported having a trick or locked knee. An August 2015 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with idiopathic bilateral tibial arthralgia/shin splints s/p right stress fracture, noting it is difficult to pinpoint the exact diagnosis. Both conditions were diagnosed in 1982. In a September 2015 addendum opinion, the examiner opined the Veterans bilateral knee condition is not secondary to his service-connected bilateral tibial arthralgia. It was reasoned stress fractures do not cause knee degenerative joint disease (DJD) as described in an x-ray presented by the Veteran's representative and the Veteran's present complaints, history and diagnosis are not consistent with stress fracture/shin splints, noting the Veteran has been sedentary and continues to have guarding tenderness 33 years after the military from 1982. It was also noted shin splints typically resolve after rest and time and the examiner could not confirm or deny another condition. Furthermore, the examiner noted the Veteran has diffuse and generalized symptom magnification with guarding tenderness to the neck, bilateral shoulders, sternum, left elbow, right and left knee, and back which makes the diagnosis difficult. It was concluded the examination demonstrated submaximal effort (decreased range of motion of the ankles inconsistent with ambulation) resulting in difficulties with the examination and diagnosis. The examiner could not rule out somatic/psychological component to the Veteran's pain. In August 2016 private treatment records, Dr. P.H. indicated if the Veteran did sustain a meniscal or cartilage injury in service, that could have predisposed him to developing arthritis. A November 2016 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with bilateral knee joint osteoarthritis, bilateral stress fracture of tibia, and bilateral shin splints. There was no opinion as to the causal relationship between the current disabilities and service. In this case the Board finds an etiology opinion based on direct service connection is warranted. The Veteran is alleging in the alternative his knees never properly healed after the in-service leg injury. Also, in the September 1982 separation examination, he reported trick or locked knee. The record reflects service connection for bilateral tibial arthralgia with shin splints for the legs. As such remand is warranted for a new VA opinion. Also, the November 2016 VA examiner noted additional diagnoses related to the knees; however, no medical opinions were rendered. 6. Entitlement to service connection for a lumbar spine condition The Veteran claims his preexisting back condition was aggravated by service. Specifically, he alleges he was required to march every day for about 10 minutes fully equipped with his gear and it resulted in back pain. He also feels his service-connected leg injury played a role in all of his injuries. STRs do not reflect any symptoms, diagnosis, or treatment for a back disability. In May 1981 a letter from a private facility indicated the Veteran was in treatment for a cervical spine, lumbar spine, and left clavicle disability, however he would be ready for military service in August 1981. The February 1982 enlistment examination did not note any defects. On the examination it was noted the Veteran had full range of motion for the cervical and lumbar spine. On the concurrent medication examination, the Veteran reported a back injury in February 1982. On the September 1982 separation examination normal clinical findings were noted for the spine. When asked if he had ever been hospitalized the Veteran noted he was in a car accident and broke his back. An August 2015 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with lumbosacral strain. Also, the examiner indicated a diagnosis of "lumbar strain with right leg sciatica without consistent pathology with positive Waddell," was noted as existing prior to service. The Veteran reported injuring his back in a motor vehicle accident prior to service. The examiner opined the Veteran's lumbar spine with sciatica existed prior to the service and was not aggravated beyond its natural progression while in the military. It was reasoned, there is evidence of lumbar fracture before the military per STR and the Veteran's admission; there is no evidence of a diagnosis or treatment for the back while in service; the Veteran admitted he was not evaluated or treated in service for a back condition; the degenerative disc disease (DDD), DJD, and muscle strain are multifactorial and caused by or exacerbated by age, time, smoking, poor posture, lack of exercise, obesity, trauma/injury, and heavy physical or repeated lifting (inadequately); and some degree of DDD and DJD progresses as one ages. The examiner also noted, an X-ray was not performed in the military and without it the examiner cannot adequately provide a cause-and-effect relationship as the examiner needs to compare military images with present day images. Also, it was noted the range of motion at this examination was not consistent with an organic disease process as the Veteran has diffuse and generalized symptom magnification demonstrating submaximal effort that makes examination and diagnosis very difficult. Furthermore, the examiner noted somatic/psychological component to pain could not be ruled out and the Veteran's condition is complicated by guarding tenderness to the neck, bilateral shoulders, sternum, left elbow, bilateral knee, and bilateral shins. Initially the Board notes there is clear and unmistakable evidence that a back injury had occurred prior to service. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case the Board finds the August 2015 VA inadequate inasmuch as although the examiner provided an opinion on aggravation, the examiner used the incorrect standard. In the rationale, the examiner noted an X-ray was not performed in the military and without it the examiner cannot adequately provide a cause-and-effect relationship as the examiner needs to compare military images with present day images. While helpful, x-rays from service are not required to determine the etiology of the Veteran's lumbar spine disability. As such remand is warranted for a new VA opinion. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to assess the current severity of the Veteran's service-connected right and left tibial arthralgia with shin splints. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record and the Veteran, the examiner should address the following: (a.) Record in detail the symptoms and manifestations of the Veteran's right and left tibial arthralgia with shin splints. (b.) The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected parts. (c.) The examiner should identify the degree of any additional range of motion loss due to pain on use or during flare-ups. (d.) If the Veteran reports flare-ups but the examination is not conducted during a flare-up, appropriate information should be solicited from the Veteran in order to attempt to estimate any additional impairment during flare-ups. (e.) The examiner should report on the length of time the Veteran's disability required treatment; whether this time was for no less than 12 consecutive months; and/or is unresponsive to surgery and either shoe orthotics or other conservative treatment. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Forward the claims file to the examiner who conducted the August 2017 VA examination, if available, for an addendum opinion and rationale based on direct service connection for the bilateral hearing loss and tinnitus. If that examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested opinion and rationale. If the requested opinion cannot be provided without another examination of the Veteran, schedule him for a VA examination with an appropriate examiner. The examiner shall provide an opinion as to the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current bilateral hearing loss condition is the result of an injury incurred in or as a result of his period of active-duty service, to include noise exposure? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current tinnitus condition is the result of an injury incurred in or as a result of his period of active-duty service, to include noise exposure? A detailed rationale supporting the examiner's opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: 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. Forward the claims file to the examiner who conducted the November 2016 VA examination, if available, for an addendum opinion and rationale based on direct service connection for the bilateral knee disorders. If that examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested opinion and rationale. If the requested opinion cannot be provided without another examination of the Veteran, schedule him for a VA examination with an appropriate examiner. The examiner shall provide an opinion as to the following question: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current bilateral knee disorders are caused or otherwise related to an injury incurred in or as a result of his period of active-duty service? A detailed rationale supporting the examiner's opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: 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. 4. Forward the claims file to the examiner who conducted the August 2015 VA examination, if available, for an addendum opinion and rationale based on service connection for the lumbar spine disorder. If that examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested opinion and rationale. If the requested opinion cannot be provided without another examination of the Veteran, schedule him for a VA examination with an appropriate examiner. The examiner shall provide an opinion as to the following question: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current lumbar spine disorder was aggravated by an in-service event or injury, to include the daily marching in full equipment and gear? (b.) The examiner should take as fact that there is clear and unmistakable evidence in the record that a lumbar spine disorder pre-existed the Veteran's service. A detailed rationale supporting the examiner's opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: 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. A. HODZIC Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.