Citation Nr: 21009765 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-40 997A DATE: February 23, 2021 ORDER Entitlement to service connection for right elbow condition is denied. Entitlement to service connection for lower back pain is denied. Entitlement to service connection for right hip condition is denied. Entitlement to service connection for left hip condition is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to a rating in excess of 10 percent for retropatellar pain syndrome of the right knee is remanded. Entitlement to a rating in excess of 10 percent for retropatellar pain syndrome of the left knee is remanded. Entitlement to a compensable rating for eczema is remanded. Entitlement to a rating in excess of 10 percent for post-traumatic stress disorder (PTSD), prior to June 18, 2020, is remanded. Entitlement to a rating in excess of 30 percent for PTSD, from June 18, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT The preponderance of evidence is against the finding that the Veteran’s claimed right elbow, bilateral hips, and back conditions, are etiologically related to service, or that such claimed conditions manifested to a compensable degree within one year from the date of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for right elbow condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 2. The criteria for service connection for lower back pain have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 3. The criteria for service connection for right hip condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 4. The criteria for service connection for left hip condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from May 1989 to July 1994. By way of procedural history, the Board notes that the Veteran’s claim for service connection for a right elbow, left and right hips, back pain, and tinnitus was previously denied by the Board in an April 2019 decision. With regard to these denied claims for service connection, the Veteran appealed the denials to the United States Court of Appeal for Veterans Claims (Court). Upon further review, the Court vacated and remanded the decision in a February 2020 Joint Motion for Remand (JMR). The Board notes that these claims are now appropriately before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Certain chronic conditions, including arthritis, will be presumed to have incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1137; C.F.R. §§ 3.309; 3.307(a). As an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The route of establishing service connection through a demonstration of continuity of symptomatology instead of through a finding of nexus is limited to the chronic disabilities enumerated in 38 C.F.R. § 3. 309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for right elbow condition 2. Entitlement to service connection for lower back pain 3. Entitlement to service connection for right hip condition 4. Entitlement to service connection for left hip condition With specific regards to the Veteran’s claims of service connection for a right elbow condition, back pain, and a bilateral hip condition, the Board notes that the basis for the Court’s vacatur and remand was to resolve a procedural defect with regards to the production of medical records to the Veteran’s representative. To this end, as noted in the JMR, such defect in the VA’s duty to assist, in providing properly requested VA medical records, was rectified when the Veteran’s representative received the Record Before the Agency (RBA) in preparation for the appeal before the Court, which include those medical records previously requested by the Veteran’s counsel. Therefore, as such procedural defect was resolved by the procedures at the Court, the April 2020 JMR only directed the Board to afford the Veteran, and his representative, adequate time (90 days) to respond to the evidence obtained by the RBA. The Board notes that since the April 2020 JMR and Order, from the Court, the Board has afforded the Veteran more than nine month to respond to the provided evidence and medical records. In this regard, the Board finds that no additional arguments or evidence has been submitted to the Board/VA specifically regarding any matters related to the Veteran’s claims to his back, hips, or right elbow. As such, the Board finds that it has substantially complied with the Court’s Orders and directives in its JMR. Therefore, as the Court took no issue in the JMR with regards to the reasoning and basis of the denial regarding these claims, and as no additional evidence and/or argument has been presented by the Veteran, or his representative, the Board finds no reason to alter the substantive analysis provided in the initial April 2019 Board decision. Accordingly, the previous denial of the Veteran’s claims of service connection for back pain, bilateral hips disability, and a right elbow condition, is incorporated herein. Concerning the establishing of a current disability, or element (1) for service connection, the criteria have been met. The Veteran is certainly permitted to report having current pain in his right elbow, low back, right hip, and left hip. Therefore, a current disability regarding his claim for a right elbow disability, back pain, and bilateral hip disability is met. However, there is no probative evidence of an in-service injury or illness for any of the aforementioned impairments. A review of the Veteran’s service treatment records (STRs) reveals no evidence of complaints, diagnosis, or treatment for the Veteran’s claimed elbow, hips, or back disabilities. The Board also points out that, while the Veteran presented for treatment of multiple other conditions throughout service, his STRs are void of any treatment or even complaint for these specific disabilities during service. To this end, the STRs appear to be complete, and it follows that orthopedic conditions are conditions that would have ordinarily been recorded during service; therefore, the complete STRs, which were generated contemporaneous to service, are likely to accurately reflect the Veteran’s physical condition, so are of significant probative value. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). The Board finds that in addition to such a lack of any inservice injury or incurrence, the relevant evidence seems to present against the Veteran’s claim that such claimed disabilities were related to his active service. Specifically, with regards to this claimed elbow condition, a December 2001 medical record reflects that he was in lawsuit with the shipyard where he worked regarding a work-related injury to his elbow. While the specific elbow is not identified, right or left, there is no other evidence of treatment or injury related to an elbow within the record, especially during his service period. The Board also notes that the Veteran has not presented any lay evidence or testimony demonstrating any inservice incident relating to his claimed disabilities of the hips, back, or elbow. To this end, the Veteran has not present even lay evidence asserting an inservice injury that could be etiologically related to his claimed disabilities, to include any alternate theories of entitlement. As such, the Board does not find that the VA’s duty to afford the Veteran a VA examination has been triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further notes that service connection may also be warranted on a “presumptive” or “secondary basis. However, there is no evidence of a diagnosis or treatment showing arthritis of the right elbow, lower back, or hips within one year of discharge, or evidence of symptoms that occurred within service and subsequent manifestation of the same chronic disease later to a compensable degree (10 percent) to warrant service connection under the theories of direct or presumptive service connection. Thus, the preponderance of the evidence is against the claims for service connection. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board considered the benefit of the doubt doctrine; however, the evidence is not a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claims. Therefore, it is not for application and the claims for right elbow condition, lower back pain, right hip pain, and left hip pain, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Board notes that the Court’s April 2020 JMR also vacated and remanded the Veteran’s claim for service connection for tinnitus. Here, unlike the orthopedic disabilities described herein, the Court took issue with the substantive basis and reasoning regarding the Board’s denial of the Veteran’s claim for tinnitus. Specifically, the Court contends that the Board’s decision failed to address evidence of potential inservice injury/incurrence of the Veteran’s tinnitus through hazardous noise exposure. The Board agrees. The Board notes that the Veteran has not been provided a VA examination with regard to the claims for service connection for tinnitus. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, with specific regards to the Veteran’s claim for tinnitus, the Board finds that there is evidence of record to trigger the VA’s duty to provide the Veteran with a VA examination. Specifically, as pointed out by the Court, a January 1993 audiogram noted “routine” exposure to hazardous noise. While such evidence is not sufficient to be dispositive of the claim for service connection, the Board finds that evidence overcomes the low threshold necessary to trigger VA’s duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to a rating in excess of 10 percent for retropatellar pain syndrome of the right knee is remanded. 3. Entitlement to a rating in excess of 10 percent for retropatellar pain syndrome of the left knee is remanded. 4. Entitlement to a compensable rating for eczema is remanded. 5. Entitlement to a rating in excess of 10 percent for post-traumatic stress disorder (PTSD), prior to June 18, 2020, is remanded. 6. Entitlement to a rating in excess of 30 percent for PTSD, from June 18, 2020, is remanded. The Board finds that with regards to the Veteran’s claim for an increased rating for his bilateral knee disabilities, skin disability, and PTSD, there seems to be missing VA treatment records. The Board notes that in the last Board remand, the RO was directed to obtain up-to-date VA treatment records, as the most recent record at the time was from June 2016. A close review of the claims file shows that such records were not obtained since the last remand, as the only record more recent than June 2016, is a single entry of the VA suicide hotline incident with the Veteran in 2018. Here, as there is no finding by the RO, or the VAMC, that such records were sought and unavailable, or that no additional treatment have been sought by the Veteran for nearly half a decade, or since June 2016, with the VA, the Board finds that remand is required so that additional efforts can be undertaken to obtain such records. Additionally, the Board finds that with regards to the Veteran’s claim for an increased rating for his bilateral knees, the Veteran’s last VA examination is inadequate. The Board notes that while January 2021 VA examiner provided an adequate picture of the Veteran’s objective aspects of the Veteran’s knee disabilities, the Board finds that such findings failed to adequately consider and speak to both lay and medical evidence of record. Specifically, while the VA examiner found that the Veteran’s knee condition did not provide for any functional loss, the examiner failed to provide any explicit consideration of the Veteran’s lay claims of increased pain and functional loss, to explicitly include during flare-ups. Additionally, private medical evidence of record, also have noted severe limitations of motion, and functional loss, to include climbing ladders and stairs, due to the Veteran’s knee disabilities; such evidence is also ignored by the examiner when evaluating both functional loss and employability. As such, the Board must find such examination to be inadequate, and remand is required. 7. Entitlement to a total disability rating based on individual unemployability is remanded. The claim for a TDIU is intertwined with the claims for higher ratings being remanded, as the VA examination findings may impact the claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Thus, the claim for a TDIU must also be remanded. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. Make at least two recorded attempts at acquiring such records. These efforts should include confirming with the Veteran with regards to any changes in VAMC he attends for treatment, if any. If additional records are not available or cannot be obtained, the RO must make an official finding of such. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from private treatment providers that are not already of record. 3. Schedule the Veteran for a VA examination for the purpose of determining the nature and etiology of his claimed tinnitus. The examiner must review the claims file and should note that review in the report. The rationale should be offered for all opinions provided. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any tinnitus is causally related to active service or any event, injury, or disease during service. The examiner must explicitly speak to the potential noise exposure noted on the January 1993 audiogram. 4. The Veteran should be afforded a VA examination in order to determine the extent of his service-connected retropatellar pain syndrome of the left and right knees. The Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38C.F.R.§4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, the examiner should address the impact of the retropatellar pain syndrome of the left and right knees disabilities upon the Veteran’s industrial activities, including his ability to secure and follow substantially gainful employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. All findings, to especially include those related to functional loss or employability must explicitly show consideration for the Veteran’s lay statements regarding pain, and previous medical evidence of loss of range of motion or function. The examiner must reconcile all findings with the medical and lay evidence of record. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.