Citation Nr: 21006430 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-04 948A DATE: February 4, 2021 ORDER Entitlement to service connection for a bilateral knee disability, arthritis, is granted. Entitlement to service connection for a right ear hearing loss disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran is diagnosed with bilateral knee arthritis and credibly reports that he has experienced bilateral knee pain since separation from service. 2. The preponderance of the evidence of record is against finding that the Veteran has had a right ear hearing loss disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee arthritis are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right ear hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1988 to March 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and December 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In September 2019, the Board remanded the claims for service connection for hearing loss, tinnitus, and a bilateral knee disability and denied the claim for service connection for a low back disability. The Veteran appealed the Board’s decision to deny service connection for a low back disability to the United States Court of Appeals for Veterans’ Claims (CAVC). In an August 2020 order, CAVC granted a joint motion for partial remand (JMPR), vacated the Board’s decision to deny service connection for a low back disability and returned the claim to the Board. An October 2020 rating decision granted service connection for tinnitus and a left ear hearing loss disability. These matters are no longer before the Board.   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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a bilateral knee disability. The Veteran asserts that his bilateral knee disability is related to service as a result of repetitive stress from jumping out of planes, carrying 50-110 lb packs, and from a rugby injury. The Veteran has a current diagnosis of osteoarthritis of the knee, bilateral, based on the results of diagnostic imaging, as evidenced by an October 2010 VA treatment record and confirmed at his February 2013 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records (STRs) show the Veteran complained of and was treated for left knee pain subsequent to a rugby injury in 1995, he continued to complain of and seek treatment for left knee pain until his separation from service in 1998. An undated treatment record also shows complaint of periodic right knee pain and swelling. At his initial VA treatment appointment in October 2005, the Veteran complained of and sought treatment for joint pain and stiffness in his knees. He reported that he was having increased discomfort in his knees and noted that in service he jumped out of planes for ten years. In a January 2013 VA treatment record the Veteran reported that he had had chronic knee pain since 1998. He has continued to complain of and seek treatment for knee pain through VA treatment to the present. At a VA examination in February 2013, a VA examiner opined that the Veteran’s current knee disability of mild medial joint space narrowing in both knees was less likely than not related to service. In a September 2018 correspondence, the Veteran submitted a statement that attributes his knee pain and the wear and tear on his knees to in-service injuries, airborne training and practice, as well as carrying 50-110 lb packs and gear during operational situations. At his June 2019 hearing, the Veteran testified that he injured his left knee during basic training, as well as in 1995 while playing rugby. He stated that his right knee injury history was the same as the left and that he continued to have pain in his knees since service, as evidenced by his VA treatment records. The Veteran’s wife testified that he had off and on knee pain since the injury in 1995 and that for 29 years it has slowly and progressively gotten a little worse. She noted that when he was jumping out of planes or engaging in physical training, he would complain of knee pain. Both the Veteran and his wife reported that he had no knee problems before service and the Veteran reported that he has had no traumatic injuries to his knees since service. His wife also testified that it has always been, as still is, a fight to get him to go to the doctor. While no treatment records exist from during the applicable one-year presumptive period, the Board finds that the Veteran continued to experience the same symptoms from March 1998 to October 2005 and to the present. The Veteran and his wife are competent to report that he experienced symptoms of knee pain during that period but did not seek treatment because he does not like to go to the doctor. His and his wife’s statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. The Board notes that contemporaneous medical evidence is not required under 38 C.F.R. § 3.303(b) to find that a chronic disease was “noted” in service or within a presumptive period for purposes of continuity of symptomatology. “[A]s long as the condition is noted at the time the Veteran was in service such noting need not be reflected in any written documentation (other than as required to be in a format sufficient for inclusion as part of the record and proceedings before the Secretary and the Board)... either contemporaneous to service or otherwise.” Savage v. Gober, 10 Vet. App. 488, 496 (1997). Finding the February 2013 VA nexus opinion inadequate, the Board remanded the appeal in September 2019 for an addendum opinion and rationale. An addendum opinion and rationale was provided in February 2020. In finding that the Veteran’s current bilateral knee disability was not related to service, the VA examiner noted that the Veteran works or worked full time as a deputy at a sheriff’s office and opined that if the Veteran had any knee issues he would not be gainfully employed as a sheriff’s deputy, due to the physical demands and fitness standards for employment. The VA examiner did also consider the Veteran’s in-service injuries, treatment, and history of airplane jumps in providing his opinion and noted the Veteran’s current age and weight in providing his opinion. However, the VA examiner failed to adequately address the lay assertions the Veteran, and his wife, presented at the Veteran’s hearing and in VA treatment records and other filings, regarding continued knee pain symptomatology. While both the lay evidence of record and the February 2020 VA examiner’s opinion are competent and credible, the VA examiner’s opinion is afforded less probative weight because it failed to address the lay evidence of record. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds the lay evidence regarding onset and continuity to be credible and thus, sufficient to establish a nexus to service. There is no evidence of a clearly attributable intercurrent cause. Accordingly, service connection for a bilateral knee disability, diagnosed as osteoarthritis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). 2. Entitlement to service connection for right ear hearing loss. The Veteran seeks entitlement to service connection for a right ear hearing loss disability due to in-service acoustic trauma. For the reasons explained below, service connection is not warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a disability during that period, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The threshold question that must be addressed here then (as with any claim seeking service connection), is whether the Veteran actually has had the disability for which service connection is sought, at any time during the period on appeal. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board concludes that the Veteran does not have a diagnosed right ear hearing loss disability pursuant to 38 C.F.R. § 3.385 and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer, 3 Vet. App. at 225. VA examination reports from December 2005 and August 2013 both show normal right ear hearing. There are no private or VA treatment records which contain a diagnosis of a right ear hearing loss disability for VA compensation purposes. A September 2020 VA examination report reveals that the Veteran experienced subjective symptoms of having difficulty hearing at work, having trouble hearing what people say, and having to ask people to repeat themselves. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, indicate that he did not have a diagnosis of right ear hearing loss for VA compensation purposes, though they showed mild right ear hearing loss. His results were as follows: September 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 30 35 25 96% The VA examiner also noted that in-service audiograms from 1988, 1990, 1991, and 1995 also show normal right ear hearing thresholds, with no shift from the time of enlistment. The VA examiner did provide an opinion that linked the Veteran’s mild right ear hearing loss to in-service acoustic trauma, due to his military occupational specialty of infantry, which the VA examiner noted carries a high probability of noise exposure. However, without a current diagnosis of right ear hearing loss for VA compensation purposes, service connection cannot be granted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran is competent to report difficulty with his hearing; however, determining whether a hearing loss disability exists, as defined by 38 C.F.R. § 3.385, is not a simple medical condition or determination because the diagnosis requires audiometric testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this case, the competent medical evidence does not show current audiometric findings which meet the criteria for a finding of right ear hearing loss for VA compensation purposes. As there is no current right ear hearing loss disability, service connection may not be granted. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran, in a September 2018 correspondence, contends that his low back disability is due to the repetitive rigors of his military service, to include wear and tear due to airborne training and practice as well as carrying 50-110 lb packs and gear during operational situations. In the same correspondence, he also contends that his low back disability is a result to some degree of his knee pain, which causes him to favor one side or the other, depending on where the pain is worse. The Veteran has a current diagnosis of mild discogenic disease. See, e.g., VA treatment record dated November 13, 2014. As the JMPR indicates, service connection for the low back disability was inextricably intertwined with the service connection claim for the bilateral knee disability. As the Board has now granted service connection for bilateral knee arthritis, an opinion should be obtained on whether the Veteran’s low back disability is related to his bilateral knee disability. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s low back disability. The need for an in-person examination is left to the examiner’s discretion. If necessary, and if feasible, schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file and provide a response to the following: Is any currently diagnosed low back disability (to include the mild discogenic disease diagnosed in November 2014) at least as likely as not related to service, to include as a result of the rigors of the Veteran’s military experience such as carrying heavy ruck sacks and jumping out of planes? Is any diagnosed low back disability at least as likely as not proximately due to the Veteran’s service-connected bilateral knee disability, diagnosed as osteoarthritis? Is any diagnosed low back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran’s service-connected bilateral knee disability, diagnosed as osteoarthritis? The examiner is advised that the Veteran contends his back disability is a result, to some degree, of his knee pain, which causes him to favor one side or the other, depending on where the pain is worse. The examiner must provide a complete rationale to support all opinions. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED