Citation Nr: 21076569 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-22 471 DATE: December 27, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right upper extremity disability is remanded. Entitlement to service connection for a left upper extremity disability is remanded. Entitlement to service connection for a spine disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active service from January 1966 to December 1967. These matters come before the Board of Veterans' Appeals (Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On his April 2018 VA Form 9, the Veteran indicated that he wanted to appear via videoconference for a hearing before the Board. In December 2021, the Veteran's representative indicated that the Veteran's hearing request had been withdrawn. Accordingly, the Board may adjudicate the Veteran's claims. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks service connection for bilateral knee disabilities. During his induction examination, the Veteran reported that he had injured his knees prior to service while playing football. The clinician noted that his knees were unstable. "Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service." 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b). Where a disorder is noted on a service entrance examination, a Veteran is not presumed sound and 38 U.S.C. § 1153 applies. "A preexisting 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." See Green v. Derwinski, 1 Vet. App. 320, 322-323 (1991) (quoting 38 C.F.R. § 3.306(a)); see also 38 U.S.C. § 1153. In such cases, the evidence must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b) (2016). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Since the Veteran's knees were noted as unstable on the entrance examination, the presumption of soundness does not apply. As such, one question in this case is whether the Veteran's bilateral knee disabilities were aggravated during service. During an April 2016 examination, the Veteran reported intermittent pain during service. It is unclear whether his reports constitute aggravation of his disabilities during service. While the examiner provided an etiology opinion, the examiner used the wrong standard for addressing the relationship between the Veteran's bilateral knee disabilities and service. On remand, an addendum opinion must be obtained indicating whether the Veteran's pre-existing instability of either knee clearly and unmistakably was not aggravated beyond its natural progression during service. For any current knee disability that is unrelated to the pre-existing bilateral knee instability, the examiner should also provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) related to service. 3. Entitlement to service connection for a right upper extremity disability is remanded. 4. Entitlement to service connection for a left upper extremity disability is remanded. The Veteran seeks service connection for bilateral upper extremity disabilities. At induction to service, the Veteran reported having injured his left shoulder while playing football prior to service. The examiner noted on the report of medical history form that the pre-service left shoulder injury was not considered disabling (NCD). A left shoulder disability was not noted on examination. Accordingly, it appears that the presumption of soundness should apply. The Veteran did not report a right shoulder or right upper extremity disability at induction nor did the clinician document a disability. Accordingly, the presumption of soundness applies to the right shoulder. Unfortunately, the April 2016 examiner provided an etiology opinion using the incorrect standards for both upper extremities. Specifically, the examiner found that the Veteran had bilateral upper extremity disabilities that clearly and unmistakably existed prior to service and were less likely as not aggravated beyond the normal progression of the injury during service. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, on remand, an opinion should be obtained addressing whether the Veteran's left upper extremity disability clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably did not worsen beyond the normal progression of the disease during service. Regarding the right shoulder, an opinion should be obtained addressing whether the current disability is at least as likely as not related to service. 5. Entitlement to service connection for a spine disability is remanded. The Veteran seeks service connection for a spine disability. At induction to service, the Veteran reported that he had injured his back while playing football prior to service. The examiner noted on the report of medical history form that the pre-service back injury was not considered disabling (NCD). A back disability was not noted on examination. Accordingly, it appears that the presumption of soundness should apply. In this case, there is a question as to whether the Veteran's back disability existed prior to his military service. Unfortunately, the April 2016 examiner provided an etiology opinion using the incorrect standards. Specifically, the examiner found that the Veteran's back disability clearly and unmistakably existed prior to service and was less likely as not aggravated beyond the normal progression of the injury during service. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, on remand, an opinion should be obtained addressing whether the back disability clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably did not worsen beyond the normal progression of the disease during service. 6. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss. The Veteran was afforded an examination in April 2016 and the examiner provided an etiology opinion. Unfortunately, the opinion is inadequate for rating purposes because it is based solely upon the lack of hearing loss shown during service. The absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Accordingly, this matter should be remanded for another VA examination for the purpose of determining whether in-service noise exposure as a radio operator is related to the current hearing loss disability and whether such exposure could have caused the Veteran to progressively lose his hearing over the years. 7. Entitlement to service connection for tinnitus is remanded. Finally, because a decision on the remanded issue of entitlment to service conection for bilateral hearing loss could significantly impact a decision on the issue of entitlement to service connection for tinnitus, the issues are inextricably intertwined. A remand of the claims for service connection for tinnitus is required. The matters are REMANDED for the following actions: 1. Arrange for an addendum opinion addressing the left and right knee disabilities and if deemed necessary, conduct a new examination of the Veteran. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. The examiner should provide an opinion indicating whether there is clear and unmistakable evidence that the preexisting left and right knee disabilities, noted as instability, were not aggravated (clearly and unmistakably underwent no permanent increase in disability beyond natural progression) during service. The examiner should address the Veteran's lay reports of intermittent bilateral knee pain during service. For any current right and left knee disability, to include osteoarthritis of the knees, the examiner must indicate whether the disability is separate and distinct from his preexisting bilateral knee instability as opposed to a progression of the preexisting disability. If any current right and left knee disability, to include osteoarthritis of the knees, is found to be unrelated to his preexisting bilateral knee instability, is it as least likely as not (50 percent or greater probability) that the disability had its onset during the Veteran's service or is otherwise related to his service. The examiner must provide a complete rationale for all expressed opinions. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. 2. Arrange for addendum opinions addressing the left and right upper extremity disabilities and if deemed necessary, conduct a new examination of the Veteran. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Left Upper Extremity: The examiner must opine whether any currently diagnosed left upper extremity disability clearly and unmistakably pre-existed service. If so, the examiner must provide a rationale for this finding. Thereafter, the examiner must opine whether the left upper extremity disability was clearly and unmistakably not aggravated (clearly and unmistakably underwent no permanent increase in disability beyond natural progression) during service. The examiner must provide a rationale for this finding. If the examiner finds that any currently diagnosed left upper extremity disability did not clearly and unmistakably pre-exist service, then the examiner must opine whether it is at least as likely as not (a probability of 50 percent or greater) that the disability was caused by or related to military service. The examiner must provide a rationale for this finding. Right Upper Extremity: The examiner must opine whether it is at least as likely as not (a probability of 50 percent or greater) that the disability was caused by or related to military service. The examiner must provide a rationale for this finding. The examiner must provide a complete rationale for all expressed opinions. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. 3. Arrange for an addendum opinion addressing the back disability and if deemed necessary, conduct a new examination of the Veteran. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. The examiner must opine whether any currently diagnosed back disability clearly and unmistakably pre-existed service. If so, the examiner must provide a rationale for this finding. Thereafter, the examiner must opine whether the back disability was clearly and unmistakably not aggravated (clearly and unmistakably underwent no permanent increase in disability beyond natural progression) during service. The examiner must provide a rationale for this finding. If the examiner finds that any currently diagnosed back disability did not clearly and unmistakably pre-exist service, then the examiner must opine whether it is at least as likely as not (a probability of 50 percent or greater) that the disability was caused by or related to military service. The examiner must provide a complete rationale for all expressed opinions. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. 4. Arrange for an addendum opinion addressing the Veteran's bilateral hearing loss and if deemed necessary, conduct a new examination of the Veteran. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. The examiner must provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss manifested during service or is otherwise related to service, to include his exposure to noise while serving as a radio operator during service. In providing the opinion, the examiner should: (1) consider the converted ASA to ISO-ANSI standards in evaluating the results of the in-service audiogram from 1965; (2) explain the significance of the absence or presence of threshold shifts from 1965 to 1967; and (3) consider statements from the Veteran regarding the onset and continuity of symptomatology. The examiner must not rely solely on the fact that the Veteran's hearing was within normal limits for VA purposes at the time of separation from service, as the basis for any opinion provided. (Continued on the next page) The examiner must provide a complete rationale for all expressed opinions. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. 5. Then, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.