Citation Nr: 21007535 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-48 977 DATE: February 9, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for a back disability is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for the Veteran’s bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence does not show that the Veteran’s bilateral knee disability was caused by his service. 2. The preponderance of the evidence does not show that the Veteran’s bilateral shoulder disability was caused by his service. 3. The preponderance of the evidence does not show that the Veteran’s back disability was caused by his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1961 to December 1961. In October 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Bilateral Knee Disability The Veteran’s VA treatment records document occasional complaints of knee pain. In October 2016, he reported having “bad knees.” The medical records do not show a diagnosed bilateral knee disability. Additionally, the Veteran has not shown that his knee pain results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore he does not have a bilateral knee disability for VA purposes. Even if the Board were to assume that he had a current bilateral knee disability, service connection would not be granted because there is no nexus to service. There is no evidence of any treatment or diagnosis for a knee condition in service. Significantly, the Veteran testified at his Board hearing that his bilateral knee disability was not due to service. When asked by his representative, “[h]ow did you injure your knee, and is the knee an injury that occurred while you were on active duty?” the Veteran replied “[n]o, it wasn’t – it wasn’t service connected either.” The Veteran has specifically stated that his current condition is not related to service, and that he did not injure his knees in service. His hearing testimony is competent, credible, and is probative evidence against his claim. The preponderance of the evidence is against his claim. Thus, service connection for a bilateral knee disability is denied. 2. Shoulder Disability The Veteran’s VA treatment records note that he has shoulder pain. In October 2016, he stated that he had “bad shoulders.” The medical records do not show a diagnosed shoulder disability. Additionally, the Veteran has not shown that his shoulder pain results in functional impairment of earning capacity. Saunders, 886 F.3d 1356. Therefore he does not have a shoulder disability for VA purposes. Even if the Board were to assume that he had a current shoulder disability, service connection would not be granted because there is no nexus to service. In his May 1961 report of medical history for entry into service, he reported “yes” to whether he had a painful or truck shoulder or elbow. However, no shoulder condition was noted on his May 1961 entrance examination. Therefore, the presumption of soundness attaches for his shoulders. Additionally, his shoulder disability did not manifest during service. His service treatment records do not document shoulder symptoms and at his hearing, he testified that his shoulder was injured when he was working at a shop, which was a post-service job. Therefore it is not necessary to address whether the presumption of soundness may be rebutted. The medical evidence of record does not indicate that his shoulder disability is related to service. Additionally, the Veteran testified that this disability was not related to service. He stated that he hurt his shoulder when he “was working at the shop, and I was pulling on something, and it – and it came loose, and it – something snapped in my shoulder.” He then stated that he “wasn’t in service then.” He further stated that “it wasn’t connected to my military service.” Because there is no probative evidence indicating that his shoulder disability was related to service, and the Veteran specifically stated that his shoulder injury was post service, and that it was not related to his military service, the preponderance of the evidence is against the claim, and service connection for a shoulder disability is denied. 3. Back disability At a October 2016 social work appointment, he stated that he had a “bad back” but did not describe his symptoms or state when it began. The medical records do not otherwise reference back symptoms and back pain is not listed in his problem list. Additionally, the Veteran has not shown that his back pain results in functional impairment of earning capacity. Saunders, 886 F.3d 1356. Therefore he does not have a back disability for VA purposes. Even if the Board were to assume that he had a current back disability, service connection would not be granted because there is no nexus to service. In September 1961, the Veteran reported back pain. His service treatment records are otherwise negative for any back complaints, and no back complaints were noted on his December 1961 separation examination. The Veteran testified that he did not know how he hurt his back, and that “[i]t just started hurting.” His representative then asserted that the Veteran had a back problem in service and still had a problem at present. A VA examination was not provided for the back disability; however, a VA examination is not warranted in this case. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no competent evidence of a current back disability or recurrent symptoms of a disability, as noted above. He stated that he had a “bad back” but did not provide additional description of his symptoms. Even if there were a current disability, there is no indication that the Veteran’s current back pain may be related to service. At his hearing, the Veteran’s representative argued that he had back pain in service and it continued to the present. Conclusory, generalized statements are not enough to entitle a veteran to an examination under 38 U.S.C. § 5103A(d)(1)(B), “…[s]ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case. If Congress had intended that requirement, presumably it would have explicitly so provided.” Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). No examination and opinion is needed in this case. Service connection for a back disability is denied. REASONS FOR REMAND The Veteran’s most recent VA hearing loss examination was in November 2015. In an October 2016 VA treatment record, the Veteran stated that his hearing loss had gotten worse. At his October 2020 Board hearing, the Veteran testified that his hearing has worsened since his last VA examination in November 2015. He reported he had difficulty hearing with his hearing aids and difficulty understanding speech. A new VA examination is necessary to determine the severity of his bilateral hearing loss. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his bilateral hearing loss disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.