Citation Nr: 21014943 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-07 547 DATE: March 16, 2021 ORDER Entitlement to service connection for a left thumb disability is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for the period prior to October 2, 2014, in excess of 20 percent as of October 2, 2014, and in excess of 40 percent as of July 1, 2015, for the Veteran’s service-connected lumbar strain with degenerative arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected osteoarthritis of the right knee is remanded. FINDINGS OF FACT 1. In March 1986 the RO granted service connection fore residuals of fracture of the left thumb. 2. The competent and credible evidence is at least in equipoise as to whether the Veteran has tinnitus related to his military service. 3. The evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The appeal concerning entitlement to service connection for a left thumb disability is dismissed, as there remains no justiciable case or controversy with respect to this claim. 38 U.S.C. § 7105. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1981 to July 1985, and from May 1989 to September 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In his February 2015 substantive appeal, the Veteran indicated that he wanted to appear at a hearing at his local VA office. He was scheduled for a hearing in November 2017. He did not attend his scheduled hearing, as such his request for hearing is considered withdrawn. 38 C.F.R. § 20.704(d). As discussed below, the Board is dismissing the Veteran’s claim for service connection for left thumb disability, as service connection was granted in March 1986. The RO should reconsider whether the Veteran’s claim pertaining to his left thumb disability should be adjudicated as a claim for an increased rating. 1. Entitlement to service connection for a left thumb disability is dismissed. In March 1986 the RO granted service connection for residual of left first finger (thumb) fracture and was assigned a noncompensable rating. As the benefit sought on appeal has previously been granted in full, the claim is dismissed as a matter of law. There remains no case or controversy; or dispute of fact or law, regarding these issues. 38 U.S.C. § 7105; see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Again, the Board directs the RO to reconsider whether the Veteran’s claim pertaining to a left thumb disability should be adjudicated as a claim for an increased rating Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic disease to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus. The Veteran seeks to establish service connection for tinnitus. He maintains that the condition can be attributed to his in-service exposure to noise, including the performance of his MOS. The evidence is at least in relative equipoise as to whether the Veteran’s tinnitus began in-service and has been chronic since his service. The Veteran served as a light wheel vehicle and power generation mechanic, with decoration for rifle M16 (sharpshooter). In a September 2012 VA examination the Veteran denied current or previous tinnitus. However, in his March 2013 Statement in Support of Claim he reported tinnitus which had been ongoing since he was discharged in 1991. He told the February 2015 VA examiner that he was unsure about when he first noted tinnitus, but it was around the same time he first noted hearing loss. The February 2015 VA examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. To support this conclusion the examiner stated that given normal hearing in both ears at all frequencies at the 1991 retirement examination, no evidence of acoustic trauma at the time of separation, reported onset sometime after service and significant occupational and recreational noise exposure after service. In the December 2020 Appellate Brief, the Veteran’s representative contended that the Veteran began experiencing ringing in his ears during service and reported hearing issues on separation. Although conflicting, the evidence raises a reasonable doubt as to whether the Veteran has tinnitus related to his military service. Although the Veteran denied tinnitus at multiple VA examinations, he has also provided statements that his tinnitus has been chronic since his separation. The Veteran is competent to describe the onset and progression of his tinnitus. As such the evidence raises a reasonable doubt, such doubt must be resolved in the Veteran’s favor. 38 C.F.R. § 3.102. The February 2015 VA examiner provided a negative opinion. However, the Board assigns the opinion limited probative value. The United States Court of Appeals for Veterans Claims (Court) has observed that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). May 1990 Service Treatment Records show the Veteran’s Puretone threshold was 25 decibels at 4000 Hertz. The examiner did not address this evidence of abnormal hearing during service. At his June 1991 separation examination, the Veteran reported that at times his hearing was “low toned”. The examiner did not address this evidence of altered hearing despite reporting that the Veteran had normal hearing on examination in 1991. As such the examiner’s opinion is given less probative value. As discussed above the Veteran is competent to report the onset and progression of tinnitus, and at times has reported chronic tinnitus since service. On balance, and taking into account the totality of the evidence, including the Veteran’s in-service noise exposure as a mechanic, and his statements with respect to onset and continuity of symptoms, the Board is persuaded that the criteria for an award of service connection for tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. Service connection for tinnitus is granted. 3. Entitlement to service connection for bilateral hearing loss. The Veteran seeks to establish service connection for bilateral hearing loss. He maintains that the condition can be attributed to his in-service exposure to noise, including the performance of his MOS. The evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss has been chronic since his service. March 2014 Medical Treatment Records show that the Veteran had Puretone thresholds of 40 decibels, or greater, at 4000 Hertz bilaterally. As such he has a current bilateral hearing loss disability. The Veteran served as a light wheel vehicle and power generation mechanic, with decoration for rifle M16 (sharpshooter), as such he was exposed to acoustic trauma during his service. The question before the Board is whether there is a nexus, or link, between the Veteran’s current bilateral hearing loss and the acoustic trauma he suffered during service. During the Veteran’s June 1991 examination, the Veteran reported that his hearing at times becomes low toned. In his February 2013 correspondence, the Veteran reported that he was exposed to loud noise during service on a constant basis for eight to ten hours a day, five to six days per week. He reported that after this exposure to noise his hearing was muffed. The Veteran was provided a VA examination in September 2012. The examiner opined that it was not at least as likely as not that the Veteran’s hearing loss was caused by or a result of an event in military service. To support this conclusion the examiner stated a June 1991 examination revealed normal hearing at all frequencies, that the slight hearing loss noted during the examination at 4000 Hertz was not present at the June 1991 examination, and that enlistment examinations were not available for review. May 1990 Service Treatment Records show the Veteran’s Puretone threshold was 25 decibels at 4000 Hertz. This evidence of hearing loss at 4000 Hertz was not addressed by the examiner. Further, the examiner specifically noted that enlistment examinations were not reviewed. The current record contains the enlistment examinations in February 1981, and April 1989. Finally, the Veteran reported in June 1991 that his hearing became “low tone”, which the examiner did not address this evidence of altered hearing at the Veteran’s separation. Because the examiner did not address this evidence of hearing loss during service and separation, or the Veteran’s reports of continued hearing loss since service, the opinion is given little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran’s separation examination identified altered hearing, and the Veteran has reported a continuity of hearing loss symptoms since his service. The Veteran is competent to report symptoms of hearing loss. Although the Veteran is not competent to diagnose hearing loss, he is competent to identify that he suffers from hardships in hearing, a symptoms of hearing loss. Charles v. Principi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation). Here, the Veteran is competent to, and indeed has reported that he suffered from symptoms of hearing loss since his active service, and as his lay statements are considered credible. The Board finds that the Veteran’s lay statements provides probative evidence in support of his claim. Therefore, as the only VA examination afforded to the Veteran for this claim is of limited probative value, the Board finds that the evidence of record, considering the Veteran’s credible lay statements of continued symptomatology, are in relative equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran, the benefit of the doubt, service connection for bilateral hearing loss is granted based upon continuity of symptomatology. 38 C.F.R. § 3.303 (a), (b) (2016); see also Walker, 708 F.3d 1331. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for the period prior to October 2, 2014, in excess of 20 percent as of October 2, 2014, and in excess of 40 percent as of July 1, 2015, for the Veteran’s service-connected lumbar strain with degenerative arthritis is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected osteoarthritis of the right knee is remanded. The Veteran was afforded a VA examination of his right knee and back in October 2014, and of his back in March 2016. None of the examinations adequately addressed the requirements set out in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 29 (2017). In Correia, the United States Court of Appeals for Veterans Claims (Court) held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing described in the final sentence of 38 C.F.R. § 4.59. Correia, 28 Vet. App. at 168-169 (2016). The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups. Sharp, 29 Vet. App. 34 -36. The October 2014 examinations did not include an estimation (in terms of degrees) of motion loss due to flare-ups. Nor do the examinations detail the frequency or severity of the Veteran’s flare-ups of his back and right knee. Nor do the examinations describe the results of active and passive motion testing; or joint pain in weight bearing versus non-weight bearing. The March 2016 VA examination of the Veteran’s back indicates the Veteran did not report flare-ups. However, he reported flare-ups in October 2014. May 2015 VA treatment records show the Veteran reported his legs give out periodically, suggestive of flareups. Further the examiner noted that the Veteran had additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing, but the examiner did not describe such loss in terms of degrees of range of motion. Nor does the examination adequately follow the requirements set out in Correia. Another examination of the Veteran’s back and right knee is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record 3. Thereafter, arrange to have the Veteran scheduled for an examination of his right knee. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 4. Arrange to have the Veteran scheduled for an examination of his back. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. (Continued on the next page)   That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.