Citation Nr: 21077502 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-08 807 DATE: December 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for right ankle disability is denied. Entitlement to service connection for left ankle disability is denied. Entitlement to service connection for a left knee strain is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss began during active service. 2. The preponderance of the evidence is against finding that his left shoulder disability began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that his right ankle disability began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that his left ankle disability began during active service or is otherwise related to an in-service injury or disease, to include any service-connected disability. 5. The preponderance of the evidence is against finding that his left knee disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for a left knee strain have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Marine Corps from January 1975 to January 1979. He testified at Board hearing in September 2021 before the undersigned Veterans Law Judge. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that he was exposed to high levels of noise during service and experience hearing loss since that time. The Board concludes that the Veteran has a current hearing loss disability that is related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The November 2018 VA examination documents a current diagnosis of bilateral hearing loss. Thus, the question becomes whether the current disability is related to service. The evidence against the claim includes the November 2018 VA examination, wherein the VA examiner opined that the Veteran's current hearing loss was less likely than not related to military noise exposure/acoustic trauma. The evidence in favor of the claim includes the Veteran's MOS of antitank-assaultman which had a high probability of exposure to hazardous noise and his hearing testimony. During the hearing, the undersigned conceded noise exposure. The Veteran testified that he had hearing problems since separation, and after service, he had minimal noise exposure. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral hearing loss is related to his service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for a left shoulder disability. The Veteran contends that he suffered a left shoulder injury during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that although the Veteran has a current diagnosis of left shoulder strain and evidence shows that an in-service injury occurred, the preponderance of the evidence weighs against finding that the Veteran's left shoulder diagnosis began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with left shoulder strain until the November 2018 VA examination, decades after separation from service. Even though the Veteran is competent to report having experienced symptoms of pain following injury to his shoulder, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic left shoulder strain. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the November 2018 VA examiner opined that the Veteran's left shoulder strain is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that his current shoulder strain did not correlate with an injury from being hit by shrapnel. "The shrapnel injury was to his left tricep/inferior shoulder region, but the source of his current pain and tenderness is the left latissimus region and the left AC region." Moreover, there is a lack of service records showing a left shoulder injury. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. The Board gives more probative weight to the November 2018 VA examiner's opinion than the Veteran's lay statements. The Veteran believes his left shoulder disability is related to an in-service injury, event, or disease. During the hearing, he testified that he experienced overuse due to the physicality of his MOS and an accident during training. Specifically, he was hit in the shoulder by shrapnel from a grenade that went off accidentally. Despite his credible testimony, he is not competent to provide a nexus opinion regarding this issue. The examiner considered the shrapnel hit when concluding the current left shoulder strain was unrelated to the in-service incident. There is no competent opinion to the contrary. Absent a competent opinion linking the Veteran's current left shoulder disability to service, service connection for a left shoulder disability must be denied. 3. Entitlement to service connection for right ankle disability. 4. Entitlement to service connection for left ankle disability, to include as secondary to the right ankle disability. The Veteran contends that he suffered a right ankle injury during service that ultimately caused his current condition. As for his left ankle, he indicated that experienced symptoms during service and after, as his right ankle worsened. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease; or secondary to a service-connected disability. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Board finds that the Veteran's ongoing pain and swelling in his left ankle reaches a level of functional impairment due to the negative impact on his ability to stand/walk for long periods. The Board concludes that although the Veteran has a current diagnosis of right ankle degenerative arthritis, as well as ongoing pain and swelling in his left ankle, and he has competently testified to an in-service injury, the preponderance of the evidence weighs against finding that the Veteran's bilateral ankle disability began during service or is otherwise related to an in-service injury, event, or disease. The November 2018 VA examiner indicated the Veteran had right ankle degenerative arthritis per x-rays and no diagnosis for the left ankle. The Veteran reported that his right ankle condition went away for some time but returned in the 5-10 years prior to the exam. He experienced flare-ups that caused increased pain with weight bearing and complained of ongoing pain and swelling in both ankles. These increased symptoms impacted his ability to stand and walk long periods. The examiner ultimately found that his current condition was less likely than not incurred in or caused by service. The examiner reasoned: there was no evidence showing a consistent or permanent disability since he was seen in 1975. Moreover, the in-service record showed no history of trauma, x-rays were negative, and no diagnosis was given. The examiner found that the in-service injury was likely a strain that resolved and the current issue is a new and separate condition. Again, the Veteran reported that his ankle pain only returned recently (5-10 years prior to the exam in 2018.) Service treatment and post-service medical records are negative for any left ankle condition/injury. The November 2018 examiner indicated the Veteran did not have a left ankle diagnosis and therefore, did not provide an opinion. Nevertheless, the examiner noted that his symptoms in the ankles did not return until 5-10 years prior to the examination. The Board does not find there is evidence that tends to show the left ankle is directly related to service; and therefore, an opinion as to the left ankle disability is not warranted. Because service connection for the right ankle is denied, secondary service connection for the left ankle would also be denied. Although the Veteran believes he has a current bilateral ankle disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau, supra. Consequently, the Board gives more probative weight to the competent medical evidence, which considered the Veteran's lay statements as well as his medical history in finding no link to service. Service connection for a disability of the right and left ankle is denied. 5. Entitlement to service connection for a left knee strain. The Veteran asserts that his left knee was injured during an accidental grenade detonation in service, during which he was slammed into a wall. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that although the Veteran has a current diagnosis of left knee strain, and he has competently testified to an in-service injury, the preponderance of the evidence weighs against finding that the Veteran's left knee diagnosis began during service or is otherwise related to an in-service injury, event, or disease. The Veteran has a current diagnosis of a left knee strain per the November 2018 VA examination. The first element of service connection has been met. Service treatment records are negative for documentation of any left knee injury related to an accident with a grenade. However, the Veteran is credible and competent to describe an event during service and symptoms he experienced related to possible injuries. However, he is not competent to determine etiology of any current left knee diagnosis. Post-service treatment records show limited range of motion for the left knee in January 2019. There was no record of any ongoing condition or diagnosis. The November 2018 VA examiner opined that the Veteran's left knee strain is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that there were no complaints of knee pain/problems since 1975, over 40 years ago. There was no record of any treatment for a chronic condition at the time of the exam. The examiner opined that the condition during service was acute and appeared to have resolved at that time. The examiner's opinion is probative, because it is based on an accurate medical history, the Veteran's lay statements, and provides an explanation that contains clear conclusions and supporting data. Consequently, the Board gives more probative weight to the November 2018 VA examiner's opinion than the Veteran's lay statements. The Veteran believes his left knee disability is related to an in-service injury, event, or disease, but as noted above, he is not competent to link his current disability to service. The only competent opinion regarding nexus is the November 2018 VA examiner's negative opinion. Absent a competent opinion linking his current left knee disability to service, service connection must be denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.