Citation Nr: 21009907 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-07 335 DATE: February 23, 2021 ORDER Entitlement to service connection for a right hand disorder is denied. Entitlement to service connection for a left hand disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right wrist disorder is denied. Entitlement to service connection for a left wrist disorder is denied. Entitlement to service connection for a lumbar spine disorder, including as secondary to service-connected left knee osteoarthritis, is denied. Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A right hand disorder was not manifest in service and is not attributable to service. 2. A left hand disorder was not manifest in service and is not attributable to service. 3. A right shoulder disorder was not manifest in service or within one year of separation, and is not attributable to service. 4. A left shoulder disorder was not manifest in service and is not attributable to service. 5. A right wrist disorder was not manifest in service or within one year of separation, and is not attributable to service. 6. A left wrist disorder was not manifest in service and is not attributable to service. 7. A lumbar spine disorder was not manifest in service and is not attributable to service; the Veteran’s lumbar spine disorder was not caused or aggravated by a service-connected disability. 8. A cervical spine disorder was not manifest in service or within one year of separation, and is not attributable to service. 9. Bilateral hearing loss disability is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hand disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 2. The criteria for service connection for a left hand disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 3. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1110, 11315103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 5. The criteria for service connection for a right wrist disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 6. The criteria for service connection for a left wrist disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019. 7. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). 8. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019), 9. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1979 to June 1983. These matters come before the Board of Veterans’ Appeals (Board or BVA) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the Veteran’s case to the Agency of Original Jurisdiction (AOJ) for additional development and due process considerations. A supplemental statement of the case was issued in December 2020. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has 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 disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. At the outset, the Board notes that the Veteran does not allege, and the evidence does not show, that the Veteran was exposed to combat during service. As such, the provisions of 38 U.S.C. § 1154 are not applicable in this case. 1. Entitlement to service connection for a right hand disorder. 2. Entitlement to service connection for a left hand disorder. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for a left shoulder disorder. 5. Entitlement to service connection for a right wrist disorder. 6. Entitlement to service connection for a left wrist disorder. 7. Entitlement to service connection for a lumbar spine disorder, including as secondary to service-connected left knee osteoarthritis. 8. Entitlement to service connection for a cervical spine disorder. Based on the evidence of record, the Veteran’s claims of entitlement to service connection for bilateral hand, wrist, and shoulder disorders, as well as his claims of entitlement to service connection for lumbar and cervical spine disorders, are denied. The record shows that the Veteran has been diagnosed with bilateral hand strain, lumbosacral strain with left sciatica, bilateral chronic right wrist strain, right wrist osteoarthritis, radiculopathy of the lumbar and cervical spines, bilateral shoulder strain, and cervical strain with degenerative arthritis and degenerative disc disease, as well as right shoulder impingement syndrome, lateral tear, and osteoarthritis. Thus, the Veteran has satisfied the current disability element of service connection. Turning to the issue of an inservice incurrence of these conditions, there are no treatment or complaints related to right and left hand disorders, right and left wrist disorders, right and left shoulder disorders, a lumbar spine disorder, or a cervical spine disorder noted or identified during service or within one year after separation. Additionally, there is nothing to suggest that there were characteristic manifestations sufficient to identify right and left hand disorders, right and left wrist disorders, right and left shoulder disorders, a lumbar spine disorder, or a cervical spine disorder during service or within one year of separation. 38 C.F.R. § 3.303(b). In this case, there is no evidence of right and left hand disorders, right and left wrist disorders, right and left shoulder disorders, a lumbar spine disorder, or a cervical spine disorder during active duty or for many years thereafter. Thus, there is no evidence to satisfy the first element of service connection, in service incurrence. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran’s service and the disability). In addition to the lack of an in-service event, injury or disease related to these conditions, the evidence fails to establish a nexus between his current diagnoses and his active service. As noted, there was no diagnosis of osteoarthritis of the right shoulder and/or right wrist, or degenerative arthritis of the cervical spine within one year of separation, so a nexus cannot be presumed for these conditions. Further, the weight of the evidence reflects that the Veteran’s bilateral hand strain, lumbosacral strain with left sciatica, bilateral chronic right wrist strain, right wrist osteoarthritis, radiculopathy of the lumbar and cervical spines, bilateral shoulder strain, and cervical strain with degenerative arthritis and degenerative disc disease, as well as right shoulder impingement syndrome, lateral tear, and osteoarthritis, are unrelated to his service. None of the post-service treatment records reflect complaints, treatment, or diagnoses of with bilateral hand strain, lumbosacral strain with left sciatica, bilateral chronic right wrist strain, right wrist osteoarthritis, radiculopathy of the lumbar and cervical spines, bilateral shoulder strain, and cervical strain with degenerative arthritis and degenerative disc disease, as well as right shoulder impingement syndrome, lateral tear, and osteoarthritis, prior to 2015, and none of the Veteran’s treating providers associate these disabilities with his service. Significantly, the August 2015 and November 2019 VA examiners concluded that the Veteran’s bilateral hand strain, lumbosacral strain with left sciatica, bilateral chronic right wrist strain, right wrist osteoarthritis, radiculopathy of the lumbar and cervical spines, bilateral shoulder strain, and cervical strain with degenerative arthritis and degenerative disc disease, as well as right shoulder impingement syndrome, lateral tear, and osteoarthritis, are not related to the Veteran’s service. According to the November 2019 VA medical opinions, the Veteran’s bilateral hand strain, lumbosacral strain with left sciatica, bilateral chronic right wrist strain, right wrist osteoarthritis, radiculopathy of the lumbar and cervical spines, bilateral shoulder strain, and cervical strain with degenerative arthritis and degenerative disc disease, as well as right shoulder impingement syndrome, lateral tear, and osteoarthritis, are not likely to be related to his service given the extensive passage of time between service and his initial symptoms and diagnoses; the November 2019 VA medical opinions also noted that the Veteran did not report any relevant symptomatology or complaints during his service. These opinions are accurate based on the record which does not contain evidence of symptoms or treatment during service or continuity of symptoms since service to diagnosis. Thus, the opinions are based on an accurate medical history and provide a rationale to support the findings. To the extent that the Veteran claims his lumbosacral strain is related to his service-connected left knee osteoarthritis, review of the record shows that neither the Veteran’s treating providers, nor the August 2015 and November 2019 VA examiners, have related the Veteran’s lumbosacral strain to his service or his service-connected left knee osteoarthritis. There is also no indication that the Veteran’s lumbosacral strain was aggravated by his service-connected left knee osteoarthritis. In this regard, the Board observes that the November 2019 VA examination report concludes that the Veteran’s lumbosacral strain is less likely than not causally or etiologically related to any event, illness, or injury in service, and is not proximately due to or the result of the Veteran’s service-connected left knee osteoarthritis. The VA examiner further concluded that the Veteran’s lumbosacral strain is not aggravated by his left knee osteoarthritis, as his treatment for lumbosacral strain does not reflect an increase in severity and his left knee osteoarthritis symptomatology is stable. Again, this opinion is supported by the medical evidence of record and a rationale. Thus, it is probative as to the question of nexus on a secondary basis. The Board has considered the Veteran’s statements regarding nexus. However, the Veteran’s statements are insufficient to establish that the Veteran’s bilateral hand strain, lumbosacral strain with left sciatica, bilateral chronic right wrist strain, right wrist osteoarthritis, radiculopathy of the lumbar and cervical spines, bilateral shoulder strain, and cervical strain with degenerative arthritis and degenerative disc disease, as well as right shoulder impingement syndrome, lateral tear, and osteoarthritis, are related to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report observable symptoms such as pain, but he is not competent to determine the cause of these disabilities. Such a determination requires more than mere observation of symptoms, but medical training and knowledge which the Veteran does not have. Further, the Veteran is not competent to diagnose bilateral hand strain, lumbosacral strain with left sciatica, bilateral chronic right wrist strain, right wrist osteoarthritis, radiculopathy of the lumbar and cervical spines, bilateral shoulder strain, and cervical strain with degenerative arthritis and degenerative disc disease, as well as right shoulder impingement syndrome, lateral tear, and osteoarthritis. These disabilities require medical testing and training to diagnose. Thus, his lay assertions of a diagnosis and nexus are not competent evidence as to the claims. Reviewing the evidence, the Board finds that the most probative evidence is against the claims of entitlement to service connection for disabilities of the bilateral hands, wrists, shoulders, lumbar spine and cervical spine. Given that the preponderance of the evidence fails to establish an inservice event, injury or disease related to these conditions and does not provide a competent nexus opinion relating them either to service or a service-connected disability. Absent these two elements of service connection, the claims are denied. 9. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss that was incurred during active service. The Board acknowledges that the Veteran is currently service connected for tinnitus, and that VA has conceded that the Veteran’s assertion of in-service noise exposure as credible and consistent with his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 Veteran’s service records reflect that the Veteran had normal hearing for VA disability purposes at entrance to and separation from his service. Nevertheless, audiogram results show a threshold shift during service, and note that the Veteran had noise exposure, as his military occupational specialty required working in a boiler room. The August 1979 audiological testing showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 The December 1982 audiological testing showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 0 5 LEFT 5 5 0 5 10 At the August 2015 VA examination, audiometric testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 45 45 LEFT 25 20 20 35 40 Pure-tone threshold averages were 31 on the right and 29 on the left, and Maryland CNC testing was 86 percent bilaterally. At the August 2015 VA examination, audiometric testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 45 40 LEFT 20 15 10 35 30 Pure-tone threshold averages were 29 on the right and 23 on the left, and Maryland CNC testing was 84 percent on the right and 88 percent on the left. At the November 2019 VA examination, the VA examiner opined that it was unlikely that the Veteran’s bilateral hearing loss was caused by or the result of the Veteran’s military service. In the rationale, the VA examiner found that the shift in hearing thresholds from entrance to separation were insignificant, and consistent with a lack of permanent auditory damage due to noise exposure during service. the VA examiner also noted that, although noise exposure is conceded due to the Veteran’s military occupational specialty of boiler technician, auditory damage and hearing loss are not conceded based solely on noise exposure. The VA examiner also pointed out that hearing loss for VA disability purposes was not demonstrated until 2014, after years of recreational and civilian occupational noise exposure. Regarding bilateral hearing loss disability, the Board finds that the evidence of record demonstrates that service connection is warranted. Regarding bilateral hearing loss disability, as previously discussed, the results of his August 2015 and November 2019 audiological examinations confirm that he has sufficient hearing loss in both of his ears to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual “disability.” The Board acknowledges that bilateral hearing loss for VA disability purposes was not shown during service or at separation, but nonetheless points out that the absence of evidence of bilateral hearing loss at separation or for many years after is not determinative as to whether bilateral hearing loss is related to military service and does not preclude service connection of bilateral hearing loss in this case; to this point, the Board notes that, although the Veteran did not have bilateral hearing loss for VA disability purposes at separation, the Veteran’s hearing worsened during his active service. See Hensley at 159 (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). the Veteran’s bilateral hearing loss was more likely than not due to the Veteran’s duties while in the military. See also 38 C.F.R. § 3.303(d) (service connection warranted in some circumstances where disease is first diagnosed after service). The Veteran’s competent and credible statements thus provide a nexus linking his current bilateral hearing loss disability to his in-service noise exposure; harmful noise exposure is consistent with the conditions of his service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). In this regard, the Board notes that the Veteran has credibly stated that he experienced decreased hearing since the time of his in-service noise exposure. The Board acknowledges that the August 2015 and November 2019 VA examiners found that the Veteran’s bilateral hearing loss disability was less likely than not caused by exposure to hazardous noise during service because service treatment records indicate that the Veteran did not experience difficulty hearing in service and the Veteran did not have hearing loss sufficient to constitute a disability at separation from service. However, the Board finds these VA examination reports inadequate because the examiners did not consider the Veteran’s credible lay statements regarding hearing loss since service. Hence, on this record, the evidence is found to be at least evenly balanced in showing that the Veteran’s bilateral hearing loss disability is at least as likely as not had clinical onset following his exposure to harmful noise levels in connection with his period of active duty. In resolving all reasonable doubt in the Veteran’s favor, service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.