Citation Nr: 21010630 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-41 053A DATE: February 25, 2021 ORDER Service connection for a back disability is denied. A compensable rating for residuals of right knee Osgood-Schlatter disease is denied. REMANDED Whether new and material evidence has been received to reopen the previously denied claim of service connection for right ear hearing loss is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. The evidence does not establish that the Veteran’s back disability was incurred in service, diagnosed within one year following separation, or was otherwise related to his military service. 2. The evidence does not establish that the residuals of the Veteran’s Osgood-Schlatter disease of the right knee limited flexion to 60 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to a compensable rating for the Veteran’s right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to August 1988. These matters come before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision. In May 2017, the Veteran died; his surviving mother has been recognized as the properly substituted claimant in this appeal, and she is the appellant. The Board remanded the issues in November 2018 and May 2020 for further development, including obtaining Social Security Administration (SSA) records, obtaining outstanding VA and non-VA treatment records, and obtaining a medical opinion on the nature and etiology of the claimed back disability. SSA and VA treatment records have since been associated with the claims file and a medical opinion on the back condition was obtained in September 2020. A letter was sent to the Appellant requesting that she submit any outstanding private treatment records or authorize VA to obtain any such records, and no response has been received. The Board therefore finds there has been substantial compliance with the remand directives with regard to the claims for service connection for a back disability and an increased rating for the right knee disability. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Service connection for a back disability In October 2012, VA received the Veteran’s claim of service connection for a back disability, claimed as a “back injury.” During his lifetime, neither the Veteran nor his attorney representative made any specific contentions regarding the onset or nature of his claimed back disability, and neither identified any particular in-service back injury. The Veteran’s service treatment records are silent for complaints, diagnosis, or treatment for back problems. In April 1983, he sought treatment after hitting the back of his neck on a tank hatch. He denied any loss of consciousness but reported feeling a “burning type sensation down [his] spine.” Examination findings pertained to the cervical spine. Cervical spine x-rays were within normal limits. The assessment was contusion. In reports of medical history dated in February 1982 (enlistment), January 1987, and April 1988 (discharge), the Veteran denied currently or ever having recurrent back pain. Corresponding examination reports documented his spine and neurologic function were normal on clinical evaluation. In August 1991, the Veteran was afforded a VA examination to evaluate his claimed right knee disability. Physical examination findings included no costovertebral angle tenderness or tenderness over the spine; reflexes were 2+ and equal throughout, and motor and sensory functions were entirely normal. Treatment records from the Seattle VA Medical Center (VAMC) dated from August 2016 to December 2016 and from the Palo Alto VAMC dated from April 2017 to May 2017 are silent for complaints, diagnosis, or treatment for back problems. In May 2019, the Social Security Administration (SSA) provided VA with the records associated with the Veteran’s claim for SSA disability benefits. In April 2015, the Veteran’s primary care provider, M. Bowers, PA-C, ordered lumbar spine x-rays, noting the Veteran’s report of low back pain. A September 2015 record shows he called to request refills of pain medication for “arthritic changes in his back that cause pain.” During an October 2015 visit with another provider at Tacoma South Medical Center, the Veteran complained of low back pain for 30 years, indicating the pain had been “intermittent for some time.” The examiner noted that the “last x-ray showed some mild arthritic changes here.” The impression of a February 2016 lumbar spine MRI included degenerative changes and mild neural foraminal stenosis. A March 2016 record indicates that M. Bowers, PA-C, called the Veteran to inform him that the recent MRI of his spine showed some arthritic changes, which may be causing his pain down into the leg. However, she was more concerned about a lesion on his L2 vertebrae because with his recent urinary symptoms and elevated PSA, the finding could represent prostate cancer that had spread. Later in March 2016, the Veteran reported a history of left flank and lower back pain for the past two months. An April 2016 whole body bone scan demonstrated “multifocal areas of increased uptake identified throughout the thoracic spine,” “some increased uptake noted in the ribs,” and “some increased uptake in the right sacrum,” which were “likely reflective of metastatic disease.” The impression was osseous metastases. In May 2016, he described a two-day history of right-sided thoracic spine pain. Although the Veteran’s service treatment records do not document an injury to his thoracolumbar spine and, in fact, reflect normal spine examination findings with consistent reports by the Veteran denying symptoms of recurrent back pain, competent medical evidence of record shows he had a current lumbar spine arthritis disability during the appeal and prior to his death. Also, in October 2015, he reported a 30-year history of intermittent low back pain, suggesting it began in 1985. As such, the Board remanded this issue in May 2020 for the AOJ to obtain a VA medical opinion to determine whether the lumbar spine arthritis confirmed by x-ray study in April 2015 was related to the Veteran’s military service. See 38 C.F.R. § 3.159(c)(4) (describing when VA has a duty to obtain a medical opinion based upon a review of the evidence of record). In September 2020, a VA back opinion, by review of the record, was obtained. The examiner opined that the Veteran’s diagnosed back condition was less likely than not incurred in or caused by his military service. The examiner acknowledged that the service treatment records revealed that the Veteran hit the back of his neck on a tank hatch and experienced a burning sensation down his spine. However, the examiner determined that the incident is less likely than not to cause degenerative arthritis of the lumbar spine or chronic pain, especially years after the event. The examiner stated that the burning sensation down the Veteran’s spine at least as likely as not reflected transient neurologic symptoms due to the neck injury. The examiner noted that the evaluation in the service revealed normal spine and neurologic function on clinical evaluation, and VA records are silent regarding chronic back pain. The examiner recognized that a private provider, in 2015, documented the Veteran’s complaint of intermittent low back pain for 30 years, and imaging at the time revealed mild degenerative changes of the lumbar spine. However, the examiner found that the silence of medical records regarding back injury or chronic back pain make it less likely than not that the Veteran’s back condition was due to in-service events or injury. The examiner also explained that the mild lumbar spine arthritis, noted on imaging in 2015, at least as likely as not represented the effects of aging and normal repetitive use over time, unrelated to the Veteran’s military service. In addition, given the presence of metastatic bone disease, it is at least as likely as not that the Veteran’s back pain in 2015 was due to metastatic prostate cancer rather than lumbar spine arthritis, despite the Veteran’s complaint of intermittent back pain for 30 years since his service, which is not document in service treatment records or VA records. The Board readily acknowledges that the Veteran was competent to report his back pain, and the continuity of such pain. It has been established that evidence concerning continuity of symptoms after service may be considered to be competent, even where such is not supported by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the Veteran was a reliable historian of his experiences and perceived pain since service. See id.; See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, there is no indication that he was competent to etiologically link any such back pain to his active service and the injuries sustained therein. Although lay persons are competent to provide opinions on some medical issues, See Kahana v. Shinseki, 24 Vet. App. 428 (2011), as to the specific issue being decided herein, an opinion as to the etiology of the Veteran’s back disability and whether it was etiologically related to the Veteran’s active service, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran has not been shown to have possessed the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training, or acquired any medical expertise, in evaluating complex back conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, the Veteran’s statement that he suffered intermittent low back pain for 30 years is lay evidence that does not constitute competent medical evidence to establish etiology, and thus, lacks probative value. The Board also notes, there is no evidence of arthritis of the lumbar spine until many years after the Veteran’s separation from service, and no notation of arthritis of the lumbar spine during service. Thus, service connection on a presumptive basis is also not warranted. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As the preponderance of the evidence is against the claim for service connection for a back disability, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107 (b) (2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Increased rating for residuals of right knee Osgood-Schlatter disease The May 2020 Board remand directed that the AOJ attempt to obtain private treatment records in order to assess whether the Appellant is entitled to a compensable rating for the Veterans right knee disability. The Board remand noted that the Veteran was scheduled for a VA examination in July 2013, but the Veteran failed to report for the examination and the current medical records were insufficient to establish a rating under the currently applicable rating criteria of 38 C.F.R. § 4.71a, DC 5260. Upon remand, as discussed above, the AOJ sent letters in June and July 2020 requesting submission of private treatment records and a release for medical provider information to the VA so the VA could assist with obtaining such records. No response was received. As such, no additional medical records have been associated with the claims file that are helpful in determining whether a compensable rating is warranted. The Schedule provides that the normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. DCs 5260 and 5261 are utilized to rate limitation of flexion and extension of the knee joint. 38 C.F.R. § 4.71a. Under DC 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation; limitation of flexion to 45 degrees warrants a 10 percent rating; limitation of flexion to 30 degrees warrants a 20 percent evaluation; and limitation of flexion to 15 degrees warrants a 30 percent evaluation, the highest schedular evaluation under this diagnostic code. 38 C.F.R. § 4.71a. The Board notes that the rating schedule for the musculoskeletal system was revised effective February 7, 2021. However, the rating schedule under DCs 5260 and 5261 remained unchanged. Based on the lack of medical evidence to support a compensable rating under the applicable rating schedule, the Board finds that a compensable rating for residuals of right knee Osgood-Schlatter disease is not warranted. As such, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for right ear hearing loss is remanded 2. Entitlement to a compensable rating for left ear hearing loss is remanded A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The VA has a duty to obtain all relevant records in the custody of a Federal department agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The May 2020 Board remand specifically referenced audiograms that are noted in VA medical records to be available in the CPRS imaging and directed that the AOJ should obtain those audiograms and associate them with the claims file. The AOJ did attempt to obtain private treatment records, but there are no documented attempts in the record to obtain the VA controlled audiograms that are in the CPRS imaging system. Such evidence is crucial to determining the issues on appeal and the VA must assist the appellant with obtaining those VA records. Accordingly, remand is warranted. The matters are REMANDED for the following action: 1. Associate with the claims file the private audiograms from Group Health performed on July 13, 2016, and August 2, 2016, which are noted to be “available in CPRS Imaging” among VA treatment records according to an August 2016 VA audiology note. If the records cannot be obtained, notify the Appellant of efforts to obtain those records and give her another opportunity to submit those records. 2. If the July 13, 2016, and/or August 2, 2016, audiograms or hearing evaluations performed at Group Health are obtained from the Veteran’s VA treatment records, the AOJ should review those records to determine whether they support right ear hearing loss based on VA requirements and consider the August 2020 VA hearing loss examination opinion in light of such evidence. 3. If the July 13, 2016, and/or August 2, 2016, audiograms or hearing evaluations performed at Group Health are obtained from the Veteran’s VA treatment records, the AOJ should review those records to determine whether they support a compensable rating for the Veteran’s service-connected left ear hearing loss. 4. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Appellant and afford her an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.