Citation Nr: 21005303 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-54 524 DATE: February 1, 2021 ORDER Service connection for a right shoulder disorder is denied. Service connection for a left shoulder disorder is denied. Service connection for a right hip disorder is denied. Service connection for a left knee disorder is denied. Service connection for a right ankle disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran served on active duty from October 1967 to September 1969. 2. Right and left shoulder disorders, currently diagnosed as degenerative arthritis of the right and left acromioclavicular (AC) joints and tear of the left supraspinatus tendon, were not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current diagnoses are not causally or etiologically related to service or to a service-connected disability. 3. A right hip disorder, currently diagnosed as degenerative arthritis of right acetabulum, was not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current diagnosis is not causally or etiologically related to service or to a service-connected disability. 4. A left knee disorder, currently diagnosed as degenerative arthritis of the left knee, was not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current diagnosis is not causally or etiologically related to service or to a service-connected disability. 5. A right ankle disorder, currently diagnosed as distal fibula right ankle fracture, was not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current diagnosis is not causally or etiologically related to service or to a service-connected disability. 6. Bilateral hearing loss was not shown during service, not shown to a compensable degree within one year of service, symptoms were not continuous since service, and hearing loss is not otherwise caused by or related to service. 7. The Veteran had noise exposure in service; tinnitus has been continuous since that time. CONCLUSIONS OF LAW 1. A right shoulder disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2020). 2. A left shoulder disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2020). 3. A right hip disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2020). 4. A left knee disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2020). 5. A right ankle disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2020). 6. Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 1112, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 7. Tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1112, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2019 the Veteran testified at videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is not of record because there were audio malfunctions during the hearing. In a September 2019 letter, VA informed the Veteran that due to audio malfunctions, a transcript of the hearing could not be created. He was offered the opportunity to have another hearing. The letter then informed him that if he did not respond to the letter within 30 days, VA would assume he did not desire another hearing and would proceed with the appeal. The Veteran did not respond to the September 2019 letter. As such, and in accordance with the September 2019 letter, the Board of Veterans’ Appeals (Board) will proceed with the appeal on the current record (without a transcript). At the videoconference hearing the Veteran submitted additional VA treatment record evidence as well as some private treatment records along with a waiver of initial consideration of the evidence by the agency of original jurisdiction (AOJ). The VA treatment records are for treatment from June 1999 to July 2011. Records in the custody of the Veterans Health Administration, such as VA treatment records, are deemed to have been received by the AOJ if the AOJ had knowledge of such records through information furnished by the claimant sufficient to locate those records. 38 C.F.R. § 3.103(c)(2)(iii); Lang v. Wilkie, 971 F.3d 1348, No. 2019-1992 (Fed. Cir. 2020) (constructive possession rule applies to 38 C.F.R. § 3.156(b) without restriction). As such, the Board may proceed with the appeal. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Shoulders, Right Hip, Left Knee, and Right Ankle The Veteran claims that service connection is warranted for right and left shoulder disorders, a right hip disorder, a left knee disorder, and a right ankle disorder because they are related to his service-connected right knee disorders. Specifically, he has indicated that as a result of falls due to right knee weakness, he injured his shoulders, right hip, left knee and right ankle. A review of the record reflects that according to the September 2016 VA examination report, the Veteran has diagnoses of degenerative arthritis of the right and left acromioclavicular joints and tear of the left supraspinatus tendon, degenerative arthritis of the left knee and degenerative arthritis of the right acetabulum. Moreover, a December 2018 X-ray study reflected a diagnosis of distal fibula right ankle fracture. As such, the first element of service connection has been met with respect to the claims. In addition, the Veteran is service-connected for both right knee arthritis with instability and right knee limitation of extension. As such, the second element of secondary service-connection has been met. With respect to the third element of secondary service connection, the medical evidence weighs against the claims. In this regard, the record does not support a nexus between any right shoulder disorder, left shoulder disorder, left knee disorder, right hip disorder, or right ankle disorder and his service-connected right knee disabilities. Notably, a September 2016 VA opinion report stated that the Veteran’s right and left shoulder disorders, left knee disorder, right hip disorder and right ankle disorder were not caused or aggravated by the service-connected right knee disabilities. The clinician specifically indicated that the shoulders, right hip and left knee were totally separate anatomical and physiological units compared to the right knee and what affected one did not affect the other and vice versa. With respect to the shoulders, the VA clinician noted that the Veteran was seen for follow up for degenerative arthritis of the shoulders in 2001 but on examination there were no upper extremity symptoms. In 2002, the Veteran had complaints of bilateral shoulder pain. The 2002 record reflected the physician’s notation that there was arthritis in both AC joints; however, X-rays dated in 2004 reflected normal shoulders, with no evidence of arthritis. Specific to the right shoulder, the VA clinician noted that treatment records dated in 1998 indicated that the Veteran had right shoulder problems following a motor vehicle accident (MVA) in 1982. It was also noted that treatment records dated in May 2001 indicated that during a MVA in April 2000, the seatbelt grabbed the Veteran’s neck and his right shoulder was jammed into the door. The clinician opined that the current right shoulder disorder was most likely caused by normal physiological aging and the 1982 MVA, and it was not caused or aggravated by his right knee disability. With respect to the left shoulder, it was noted that private treatment records dated in August 2009 indicated that the Veteran slipped and fell, resulting in a left ankle fracture. The August 2009 private treatment record also noted that there was a fracture at the tip of the acromion; however, X-rays taken in August 2009 indicated moderate degenerative changes of the AC joint with questionable acromion fracture. The VA clinician indicated that the acromion was part of the AC joint, but clarified that no definite fracture of the scapula was noted in the records. Also noted was that a December 2009 MRI revealed a tear of the supraspinatus tendon and degenerative arthritis of the AC joint. Based on the above, the VA clinician opined that the left shoulder disorder was more likely related to normal physiologic aging, a physically demanding job after service, and the fall when slipping on his left ankle; it was not caused or aggravated by the right knee disability. With respect to the left knee, the clinician stated that there could a possible relationship between the current left knee disorder and the service-connected right knee disability if there was a leg length discrepancy of three to six millimeters (mm) because such a discrepancy would affect the gait; however, the clinician specifically noted that this was not the case here. The clinician also noted that in 2004 the Veteran slipped in the bathtub and twisted his left knee. A December 2004 follow-up appointment indicated that he was doing much better, there was no left knee instability, and X-rays were normal. The clinician noted that a June 2011 X-ray study revealed only mild degenerative changes of the left knee with some small marginal osteophytes consistent with early osteoarthritis. The clinician opined that the current left knee disorder was most likely due to normal physiologic aging and history of a physically demanding job after service; it was not caused or aggravated by the right knee disability. With respect to the right hip, the VA clinician noted that on examination in 2002 that the Veteran had leg complaints which could possibly be evidence of arthritis of the hips. X-rays taken in 2004 showed large ossification upon the greater trochanter anteriorly with possible remote trochanteric bursitis but normal right hip joint. VA examination in 2011 revealed mild degenerative joint disease of both acetabulums of the hips. A 2013 private DBQ revealed no hip symptoms. Based on the above, the clinician opined that the right hip disorder is most likely due to normal physiologic aging and a physically demanding job., not caused or aggravated by the service-connected right knee disability. With respect to the right ankle, a February 2013 private DBQ indicated that the Veteran did not have any current right ankle problems and a September 2016 VA opinion found that the Veteran had no right ankle disorder that was caused or aggravated by his service connected right knee disability. The VA opinion report includes extensive review of the claims file and well-supported opinions consistent with the evidence of record. The record also contains February 2013 private DBQs which contain opinions in favor of the left shoulder disorder and the left knee disorder claims. In this regard, the private physician indicated that the Veteran’s left shoulder problems began 20 years previously due to falls. It was specifically indicated that in August 2009 the Veteran’s right knee bucked and he fell, resulting in a left shoulder injury (nondisplaced AC fracture and rotator cuff tear). Another February 2013 DBQ indicated that the left knee problems began 20 years previously because he favored his right knee. The private physician indicated that the Veteran slipped in the bathtub and hurt his left knee in August 2009. Importantly, the February 2013 DBQ specifically stated that there were no current right hip or ankle problem and it contains an opinion against the right shoulder claim. Another February 2013 private opinion report indicated that there was no documented injury to the left knee that was related to right knee. It was noted that the Veteran had a left knee injury in August 2009 when he slipped in the bathtub; however, that pain resolved with treatment. Therefore, the private physician opined that the left knee disorder was not at least as likely as not proximately due to or the result of the service-connected right knee. The September 2016 VA clinician addressed the February 2013 private opinions in favor of the left shoulder and left knee claims, noting that the VA treatment records that addressed the Veteran’s fall in August 2009 in which he injured his left ankle and left shoulder did not in any way show/confirm that the fall was due to the right knee disability. As such, the VA clinician determined that the private opinions were based upon conjecture/an unfounded assumption that the right knee disability caused the fall, when there was no medical documentation in the contemporaneous records stating that the service-connected right knee disability/weakness was the cause of the fall. In weighing the private and VA opinions, the Board accords the VA opinion greater probative weight. It was based upon a thorough review of the record and the private opinion is not. The private opinion does not indicate that any records were reviewed and review of the August 2009 VA treatment record (cited by the private physician) does not reflect that the Veteran reported or the clinical evaluation revealed that the service-connected right knee disabilities were the cause of the fall. As that is the basis for the private opinions, that opinion is of limited probative value. The Board acknowledges that the Veteran fractured his right ankle due to a fall in December 2018, which was two years after the VA opinion was rendered; however, the December 2018 private treatment record which noted that the Veteran injured his right ankle due to a fall did not indicate that the fall was due to a right knee disability. Instead, it stated that he tripped (right leg) and tumbled down a hill. As such, there is no medical evidence demonstrating that the right ankle fracture was caused by the service-connected right knee disability. Although the Veteran has not alleged that his right shoulder disorder, left shoulder disorder, left knee disorder, right hip disorder or right ankle disorder are directly related to service, all service connection theories will be discussed. As to the second element of direct service connection – an in-service incurrence – the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of any shoulder disorder, left knee disorder, right hip disorder, or right ankle disorder, including arthritis. At service separation, clinical evaluation of the shoulders, left knee, right hip, and right ankle were normal and on the Report of Medical History and he did not report any shoulder, left knee, right hip, or right ankle problems. Therefore, the medical evidence does not support direct service connection as an in-service incurrence has not been shown. As to presumptive service connection, no chronic disease or injury involving the shoulders, left knee, right hip, and/or right ankle was shown in service. Also significant is the lack of complaints or findings at the time of service separation. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran has not contended that he injured his shoulders, left knee, right hip, or right knee in service or that he has had continuous symptoms since service. Moreover, the first recorded evidence of right shoulder complaints is in 1982 after a MVA. The first recorded evidence of left shoulder symptoms was in 2009. The first recorded evidence of any right hip symptoms was in 2002 at the earliest when leg complaints, according to the September 2016 VA clinician, could be evidence of hip problems. The first recorded evidence of left knee complaints was in a January 1999 VA treatment record and the first recorded evidence of right ankle problems is from June 2002 after a sprain. Further, degenerative arthritis of the shoulders, left knee and right hip were not diagnosed until decades after service discharge. This suggests an onset of symptoms a decade or more after service. As he was discharged in 1969 and symptoms were not identified until over 10 years (or more for some disorders) later, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorders did not manifest to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1969 but did not note right shoulder symptoms until 1982 after a MVA at the earliest and later for other disorders. Although a June 1998 VA treatment record reflected his report of “generalized arthritis,” as noted above, X-ray studies from 2004 revealed normal left knee and shoulders. However, there is a notation of arthritis of the shoulders as early as 2002, right hip arthritis in 2004, and right ankle sprain in 2002. The earliest X-rays evidence of left knee arthritis was in 2011. Even considering his arthritis began in 1982 (right shoulder) or 1998 for the other joints, this evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. Bilateral Hearing Loss For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs, and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran has claimed entitlement to service connection for bilateral hearing loss. He has been diagnosed with bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. In addition, he reported that he was in an artillery unit and was exposed to 105 and 155 Howitzers without the use of hearing protection in order to communicate during training exercises. As such, a current disability has been shown, and noise exposure is conceded. As to in-service incurrence, the STRs reflect no hearing complaints. All examinations and audiograms during service reveal hearing within normal limits. The separation Report of Medical History noted that he specifically denied hearing loss. Further, he does not contend that he sought treatment for hearing loss during service. Therefore, the medical evidence does not support the second element of direct service connection. On the question of a medical nexus between the current bilateral hearing loss and service, there is one medical opinion of record. A July 2011 VA examination report stated that noise exposure was conceded; however, the examiner stated that hearing was normal at separation and the Veteran had post service noise exposure working as a laborer at an oil company for 30 years. While the Veteran reported that there was no significant noise exposure on the job and he did not use hearing protection, he also reported that he hunted for 20 years and wore ear muffs during target practice. The examiner concluded, based on all of the evidence, that it was less likely as not that the bilateral hearing loss was a result of acoustic trauma incurred during service from explosions and military noise. There is no contradictory medical opinion. The Board finds that the July 2011 VA examination is adequate for rating purposes. Specifically, the examiner conducted an audiological examination, identified a diagnosis, obtained a medical history from the Veteran, identified the current symptoms and treatment, and offered a medical opinion and adequate supporting rationale regarding the issue on appeal. For those reasons, the examination was adequate. Based on the above, the preponderance of the medical evidence does not support the claim based on medical nexus. As to continuity of symptomatology, the earliest possible recorded evidence of hearing loss is from a June 1999 VA treatment record. However, at that time he reported that he was satisfied with his hearing and he specifically stated that he did not experience hearing loss. This decades long period between service and the onset of hearing loss and is one factor that weighs against a finding of service continuity. The Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court’s precedential decisions. To the extent that the Veteran contends that he had symptoms of hearing loss in service and since, the medical evidence does not support this contention. There is no documentation of any hearing loss complaints prior to the indication that there was some hearing loss noted on audio evaluation in June 1999. Despite this finding, he reported that he was satisfied with his hearing and that he did not experience hearing loss at that time. There is no indication in the record that he had ongoing hearing loss or that he has contended that he has had ongoing hearing loss since discharge from service in 1969. Of note, the July 2011 VA examination report indicated that the Veteran did not report having hearing loss/symptoms of hearing loss. (His only documented complaint was tinnitus.) Importantly, he has not reported hearing loss symptoms since service. For these reasons, the medical evidence does not support presumptive service connection under 38 C.F.R. § 3.303(b) based on either “chronic” symptoms in service or “continuous” symptoms since service have not been met. Additionally, the medical evidence does not show that hearing loss manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation. As noted, the Veteran separated from service in 1969 and the earliest record of bilateral hearing loss was not until 1999, with no earlier complaints; therefore, the medical evidence does not support presumptive service connection under the provisions of 38 C.F.R. § 3.309 (a). Tinnitus A review of the record reflects that the Veteran has a diagnosis of tinnitus. Specifically, the July 2011 VA examination report noted that the Veteran reported constant tinnitus. As such, based upon this medical evidence, as well as the fact that tinnitus is a disability for which self-diagnosis is appropriate, Charles v. Principi, 16 Vet. App. 370 (2002), a current disability has been shown. As to in-service incurrence, as noted above, noise exposure is conceded. Finally, as to continuity, at the July 2011 VA examination the Veteran reported that he had experienced tinnitus for 35 years, which would place the onset of the tinnitus in approximately 1976. A March 2011 VA treatment record noted occasional tinnitus. Further, a May 1971 VA treatment record noted that he reported ringing in his right ear. The record appears to state that the ringing in the right ear had been since he was young. However, the word “young” is not entirely legible and it is unclear what exactly was written. While there is an absence of complaints or treatment for tinnitus for approximately two years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms since separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). A July 2011 VA examination report contains an opinion weighing against the claim based upon the Veteran’s report that his tinnitus began after service (in approximately 1976); however, the examiner did not address the May 1971 report of right ear tinnitus. Although the May 1971 VA treatment record appears to indicate that the right ear tinnitus had been present since the Veteran was young, the service enlistment examination does not reflect any complaint of tinnitus and there is no other indication that tinnitus pre-existed service. Indeed, the Veteran has never contended that tinnitus preexisted service. As such, in resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that the tinnitus has been ongoing since service. While there is an opinion against the claim, the Board does not need to reach the weight assignable to the medical opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease tinnitus (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of tinnitus since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service. Further, in giving the Veteran the benefit of the doubt, there is also evidence of continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. With respect to the service connection claims denied in this decision, the Board has considered the Veteran’s lay statements that his claimed right shoulder disorder, left shoulder disorder, right hip disorder, left knee disorder and right ankle disorder are etiologically related to the service-connected right knee disorder and his bilateral hearing loss is etiologically related to service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.