Citation Nr: 21009288 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-24 786 DATE: February 22, 2021 ORDER Entitlement to service connection for left shoulder bursitis (left shoulder disability) is granted. Entitlement to service connection for left elbow medial epicondylitis (left elbow disability) is granted. Entitlement to service connection for right knee degenerative arthritis (right knee disability) is granted. Entitlement to service connection for left knee degenerative arthritis (left knee disability) is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left shoulder disability had its onset during service. 2. The evidence is at least evenly balanced as to whether the Veteran’s left elbow disability had its onset during service. 3. The evidence is at least evenly balanced as to whether the Veteran’s right knee disability had its onset during service. 4. The evidence is at least evenly balanced as to whether the Veteran’s left knee disability had its onset during service. 5. The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss had its onset during service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection left shoulder disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection left elbow disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection left knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to July 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, inter alia, denied service connection for left and right knee disabilities, left elbow disability, left shoulder disability, and bilateral hearing loss. In April 2012, the Veteran filed his notice of disagreement with the claim for service connection for hearing loss, left elbow, right knee, and left knee disabilities, and in December 2012 filed a notice of disagreement with the claim for service connection for left shoulder disability. In May 2015 and June 2015, the Veteran was issued statements of the case, and in June 2015 he perfected his appeal to the Board. In March 2017, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is of record. As the VLJ who presided at the March 2017 hearing must participate in the decision on the claim in accordance with 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707, by letter dated March 27, 2018, the Veteran was offered the opportunity for another hearing before the VLJ who would decide the case. Neither the Veteran nor his representative responded to the letter within 30 days, thus in May 2018 the Board adjudicated the claims, remanding the claims for service connection for left and right knee disabilities, left elbow disability, bilateral hearing loss, and left shoulder disability for VA examinations. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Left shoulder, left elbow, right and left knee The Veteran testified that his knee gave out during a five mile run while in airborne school in service, but that he did not go to the infirmary or complain, deciding to move on to the next assignment. He also testified that the physical training while in the reserves aggravated the injuries to his shoulder, elbow, and knees. He stated that after his skiing accident, he went to the clinic for his knees, but did not have his shoulder examined. January 1983 service treatment records reflect the Veteran was treated for pain and swelling in his left knee which he had twisted while skiing. The Veteran was also treated for pain and tenderness in his right knee. July 1998 post-service private treatment records indicate that the Veteran was treated for pain and a “pop” in his left knee. May 2009 post-service treatment records reflect that an x-ray of the Veteran’s left knee indicated spurring of the patella. In a December 2010 statement, the Veteran reported that he noticed his left elbow and left shoulder popping while doing push-ups in service. He stated that he now has constant pain in his left elbow, and that his left shoulder is painful when raising his arm, especially in the morning. February 2012 private treatment records reflect that the Veteran was treated for bilateral knee pain which he stated comes and goes. The Veteran reported a ski accident during service which resulted in an MCL injury which has since resolved, and reported aggressive activity during service, but did not recall another specific time he injured or had damage to his knees. The treating physician stated that he believes the Veteran has chondromalacia patella which is associated with repetitive stress type activity. He added that he reviewed the charts at the time of the ski injury in service and he did not think it is connected to the Veteran’s current knee disabilities. February 2012 private treatment records indicate that the Veteran was treated for left elbow and left shoulder problems which occurred in service, and was diagnosed mild shoulder bursitis and left elbow medial epicondylitis. The Veteran reported that the pain may have developed while doing push-ups in the reserves. He reported shoulder ache with an occasional “pop” and elbow pain on the inside aspect. The physician stated that he was unable to say with any certainty that the shoulder disability could be related to service as he has a mild bursitis that can occur for any reason at all. The physician also stated that the left elbow disability develops from recurrent activities such as weight-lifting or push-ups, but there was no objective evidence that the left elbow disability could be service connected. In a July 2019 DBQ, the examining nurse practitioner (NP) noted a diagnosis of left elbow medial epicondylitis, and the Veteran reported that after a skiing accident while on active duty, his left elbow began “popping” when doing push-ups. He stated he was seen, but not treated, and would push through the pain. The Veteran stated that the condition has stayed the same since onset, reported receiving steroid shots 10 to 15 years ago, but no other treatment. He reported constant shooting pain, and stated he cannot lift a certain amount of weight due to the pain. In a July 2019 DBQ, the examining NP noted a diagnosis of left shoulder strain. The Veteran reported that after a skiing accident during service, his shoulder would start “popping” while doing push-ups, and indicated he was seen but did not receive treatment. He stated he would push through the pain. The Veteran reported that the condition has worsened since onset, stating he started noticing the “popping” several years after the accident. He stated he has constant pain in the shoulder, and no strength. A July 2019 DBQ reflected that the Veteran reported twisting his left knee and spraining his right knee during a skiing accident during service. He stated after this accident, his knees were swollen and in pain, and reported that his physical training during service aggravated his knees, but he would push through the pain. The Veteran also stated he injured his left knee in airborne school, but did not go to sick call. The NP noted diagnoses of degenerative arthritis in both knees. The Veteran reported that he has not treated his knee pain since its onset, but that he does limit activities as to not stress his knees. July 2019 private treatment records indicate mild degenerative changes of the left knee and right knee, and no degenerative change in the left shoulder or left elbow. In an October 2019 addendum report, the physician’s assistant (PA) opined that the Veteran’s left shoulder disability was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, stating that the claims file is silent for in-service treatment and complaints related to the left shoulder. Therefore, a nexus cannot be established as there is no evidence to support treatment complaints in service, or continuity of care post service. In another October 2019 addendum report, the PA opined that the Veteran’s left elbow disability was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, stating that the claims file is silent for in-service treatment and complaints related to the left elbow. Therefore, a nexus cannot be established as there is no evidence to support treatment or complaints in service, or continuity of care post service. In an additional October 2019 addendum report, the PA opined that the Veteran’s right and left knee disabilities were less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, stating that the claims file is silent for in-service treatment and complaints related to the knees. The evidence is at least evenly balanced as to whether the Veteran’s left shoulder, left knee, and left and right knee disabilities are related to service. The Veteran’s service treatment records reflect treatment for right knee pain, and left knee swelling and pain, and the Veteran has provided competent and credible evidence that he suffered from popping in his left elbow and left shoulder while participating in physical training during service, and after his skiing accident in service. Additionally, the July 2019 DBQs reflect diagnoses of right and left knee degenerative arthritis, left shoulder strain, and left elbow medial epicondylitis. Therefore, the first 2 criteria for establishing service connection have been satisfied and the dispositive issue is whether there is a nexus between the two. While the October 2019 PA provided negative nexus opinions as to the etiology of the Veteran’s left shoulder, left elbow, and left and right knee disabilities, the PA primarily based her opinion on a lack of service treatment records for a left shoulder or left elbow disability, or right and left knee disabilities which is impermissible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, she failed to address the Veteran’s contentions of pain since service, did not consider the service treatment records which reflect complaints of pain in both knees, and did not consider the Veteran’s explanation that he decided to “push through” rather than seek treatment for his left elbow or left shoulder during service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Therefore, her opinion is inadequate and afforded no probative value. The Veteran has stated that he has suffered from popping in his left shoulder and left elbow since physical training during service. Although the Veteran has reported the pain including during service in the reserves, it is reasonable to conclude that following the initial skiing accident, the Veteran suffered from a “pop” in his left shoulder and left elbow both during service and during service in reserves. The Veteran has also stated that he has suffered from right and left knee pain since service, and reported that his in-service activities aggravated his pain which has continued since its onset. The Veteran is competent to report his observable symptoms of pain since service, and there is no indication in the evidence that he lacks credibility, therefore his assertions are afforded significant probative value. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). While the February 2012 physician stated that he did not think the Veteran’s knee disabilities were related to his ski accident in service, he did state that the disabilities were associated with repetitive stress like activities. The physician also stated that while he could not say with any certainty that the Veteran’s left shoulder and left elbow disabilities were related to service, he did state that the shoulder disability could occur for any reason at all, and the left elbow disability develops from recurrent activities. The Veteran has described participating in aggressive physical training in service which caused stress to his left shoulder, knees, and left elbow, and resulted in pain to each joint. The evidence of record also indicates that he was a parachutist in service, and thus participated in activities which caused repetitive stress to his joints, particularly his knees upon landing. Thus, the Veteran’s knee disabilities are consistent with the circumstances of the Veteran’s service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Thus, there is competent and credible evidence of left elbow, left shoulder, and left and right knee pain since service and inadequate negative medical nexus opinions. Although the Board could remand the claim for another medical opinion, there is sufficient evidence to decide the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above reflects that the evidence is at least evenly balanced as to whether the Veteran’s left elbow, left shoulder, and left and right knee disabilities began in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left elbow, left shoulder, and left and right knee disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bilateral hearing loss A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran testified that the first indication of hearing loss occurred while taking equipment to a driving course range in Germany which exposed him to a high pitched sound. The Veteran’s DD 214 reflects that his military occupational specialties were as a combat engineer and parachutist. The Veteran reported in a December 2010 statement that during active duty he was exposed to explosives, heavy equipment noise, and at various times was exposed to constant high humming of tires as part of a convoy with very little hearing protection. The Veteran’s service treatment records do not note treatment for, or complaints of a hearing disability during service. The Veteran’s October 1979 medical examination report upon entry into service reflects pure tone thresholds in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 5 LEFT 5 10 15 15 25 Where the degree of hearing loss noted on an entrance examination does not meet VA’s definition of a disability for hearing loss under 38 C.F.R. § 3.385, a veteran is entitled to the presumption of soundness. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). Thus, the Veteran is presumed sound as to both ears at entrance into service. The Veteran’s undated audiology report upon discharge noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 10 LEFT 10 15 15 20 15 The audiologist noted an abnormal audiogram. The Veteran reported in his March 1984 report of medical history that he did not have hearing loss. A September 1985 reference audiogram noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 5 20 LEFT 15 20 20 25 30 An April 2011 VA examination report reflected that the Veteran had had pre-existing hearing loss at 6000 Hz at enlistment, but no significant hearing threshold shift during service. The Veteran reported difficulty hearing, and stated he had to turn up the volume on the television to hear. He reported military noise exposure to heavy equipment, firing ranges, and explosives among other things, and denied occupational or recreational noise exposure. Hearing was reported as within normal limits for VA purposes, with pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 10 20 35 LEFT 20 25 15 30 30 Speech audiometry revealed speech recognition ability of 100 percent in both the right and left ear. The audiologist stated that no hearing loss occurred while the Veteran was on active duty, and his pre-existing hearing loss at 6000 Hz was not aggravated by service. He noted that as no ratable hearing loss exists, no opinion is required regarding the Veteran’s claim for service connection for hearing loss. The audiologist also noted that the Veteran’s pre-existing hearing loss was not aggravated by military noise exposure. A February 2012 private treatment audiologist report reflected a mild high frequency neural hearing loss in the left ear, and a profound high frequency sensory neural hearing loss in the right ear. The Veteran stated that his hearing loss began in service. Speech discrimination scores revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Pure tone thresholds, in decibels, were noted as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 30 LEFT 20 25 15 35 40 In a July 2019 disability benefits questionnaire (DBQ), pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 25 45 LEFT 20 20 20 35 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. The audiologist opined that the Veteran’s bilateral hearing loss was less likely than not (less than a 50 percent probability) caused by or a result of an event in military service, noting that there is no significant permanent shift in hearing thresholds from entrance to separation which is objective evidence of no permanent auditory damage on active duty. The audiologist reported that there was no report of decreased hearing in the claims file or at separation until the time of the claim. He also noted that although noise exposure is conceded and the relationship between noise, auditory damage, and hearing loss is well documented, damage and hearing loss are not conceded based on noise alone, thus a nexus could not be established. The DBQ reflected that hearing loss existed prior to service, but was not aggravated beyond normal progression in military service. The audiologist noted that there was no significant threshold shift between the initial hearing test from appointment into the military and the hearing test performed 3 years post service in October 1988. Therefore, there was no aggravation of hearing loss in service beyond normal progression. The Veteran reported difficulty hearing in noisy environments, in groups, and from a distance. He stated his hearing loss had its onset in 1980, reported exposure to explosives, noise from operating heavy equipment, artillery ranges, and when working in motor pools. The Veteran reported no occupational or recreational noise exposure pre- or post-service other than power tool usage post-service. The evidence of record reflects that the Veteran has a hearing loss disability for VA compensation purposes as the February 2012 and July 2019 audiological examination reports show an auditory threshold of 40 dB or greater at 4000 Hz, for the left ear in 2012 during the claim period and in the right ear in 2019. Additionally, the Veteran has provided competent and credible evidence of noise exposure consistent with the circumstances of service. Thus, the first 2 criteria for establishing service connection have been met, and the dispositive issue is whether there is a nexus between the two. While the July 2019 audiologist opined that the Veteran’s bilateral hearing loss was not at least as likely as not related to military service, he based his opinion on his finding that there was no permanent threshold shift during service and no report of decreased hearing at separation from service, but failed to consider he Veteran’s contentions regarding an onset of hearing loss during service. The Board thus finds the opinion inadequate, and affords it no probative value. The Veteran has provided competent and credible statements with respect to his hearing loss disability. He has stated that he has suffered from hearing loss since active duty, and has indicated that since service he has not been exposed to occupational or recreational noise. The Veteran is competent and credible to describe the continuity of symptomatology for his hearing loss as it existed from his time of service, and the progressive worsening of symptoms through the years. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). While the Veteran’s March 1984 medical history report indicates that he reported no hearing loss, it is reasonable to conclude that the Veteran did not consider the hearing loss substantial enough to note it on his report, particularly considering the other evidence of record reflecting some hearing loss during service. At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. See 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is, thus, at least evenly balanced as to whether the Veteran’s current bilateral hearing loss disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.