Citation Nr: 21015813 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-23 689 DATE: March 18, 2021 ORDER Service connection for residuals of neck injury is granted. REMANDED Entitlement to a rating in excess of 10 percent for left knee strain with patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for right knee strain with patellofemoral pain syndrome is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s current residuals of neck injury had its onset or is otherwise related to his periods of active service. CONCLUSION OF LAW The criteria for service connection for residuals of neck injury are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to September 1982, and from October 2001 to October 2002. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified, sitting in San Antonio, Texas, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for residuals of neck injury. After review of the record, the Board finds that the criteria for service connection for residuals of neck injury have been met. The Veteran is diagnosed with degenerative arthritis of the spine, left cervical radiculopathy and intervertebral disc syndrome (IVDS), and status post anterior cervical discectomy with fusion C 3/4. 04/06/2017, C&P Exam. Therefore, the first element of a service connection claim, a current diagnosis, has been met. In January 2021, the Veteran testified that was injured in an all-terrain vehicle (ATV) accident during his period of active service. The Veteran was with several other servicemembers during a holiday outing when he was thrown off his ATV into the steel post of a chain link fence. Then, an ATV flew into his body, pinning the Veteran against the fence. The Veteran indicated that he immediately noticed pain in his neck after the accident and was treated at a civilian hospital immediately thereafter. The Veteran also reported that he was treated multiple times for the injury during his period of service, and that he has received continuous treatment after separation. Some of the records of post-service treatment are no longer available due to private providers not maintaining records from 2007 and 2008. 01/26/2021, Hearing Transcript. The Veteran’s testimony is corroborated by a lay statement from a fellow servicemember who witnessed the in-service accident and injury. 01/25/2021, Correspondence. Additionally, the treatment records reveal that the Veteran has been receiving continuous treatment for the residuals of his neck injury since at least 2013 and, at that time, the Veteran was described to have had a history of severe neck pain. 05/09/2017, Medical Treatment Record – Non-Government Facility; 05/12/2017, Medical Treatment Record – Non-Government Facility. A September 2015 medical opinion from the Veteran’s treating clinician opined that that the Veteran’s current neck condition is at least likely than not due to his in-service motor vehicle accident in March 2002. In rationale, the clinician described that the Veteran fell from his vehicle and was pinned to a fence, injuring his neck. 09/15/2015, Medical Treatment Record – Non-Government Facility. The Board acknowledges the April 2017 VA examination, which opined that the Veteran’s neck condition is less likely than not related to his period of active service. The rationale is based on the lack of a documented neck injury following the in-service accident in the service treatment records. However, the examiner did sufficiently consider the Veteran’s lay statements regarding the injury. In particular, that the Veteran received treatment from a civilian hospital. And, that some of his service treatment records from the National Guard are unavailable for review. 04/06/2017, C&P Exam; 04/06/2017, C&P Exam (medical opinion). The Board finds that the evidence is at least in equipoise regarding whether the Veteran’s residuals of neck injury is related to his active service. For example, the Board places some additional weight on the September 2015 private medical opinion because it considered the Veteran’s credible and corroborated lay statements regarding his in-service injury. Additionally, the clinician is familiar with the Veteran’s medical history and treated the Veteran’s neck condition for several years. On the other hand, the April 2017 VA examination is of less weight as it largely relies on the lack of service treatment records immediately after in-service injury, despite the Veteran’s credible and relevant statements regarding having received treatment at a civilian hospital, as well as the challenges in obtaining medical records from private providers and the National Guard. The probative and competent evidence regarding a nexus is at least in equipoise and the benefit of the doubt applies. 38 U.S.C. § 5107(b). Therefore, as all three service connection elements have been established, the Board finds that service connection for residuals of neck injury, as variously diagnosed, is warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for left knee strain with patellofemoral pain syndrome is remanded. 3. Entitlement to a rating in excess of 10 percent for right knee strain with patellofemoral pain syndrome is remanded. The Veteran last underwent a VA examination in April 2017. The examiner noted the Veteran experienced pain in range of motion (ROM) testing, which resulted in functional loss. The examiner also remarked that pain could significantly limit functional ability during flare-ups or when the either knee is used repeatedly over a period of time, but the examiner could not state exactly what degree of additional range of motion loss would be due to pain without resort to speculation. 04/06/2017, C&P Exam. However, the record suggests that the Veteran’s symptoms have worsened since the 2017 examination. For example, during the January 2021 Board hearing, the Veteran testified that that he experiences frequent flareups at least 2-3 times per week and sometimes every day. The flareups manifest in severe pain, precluding the Veteran from squatting or bending his knees, and requiring the assistance of his spouse to put on his clothes. And, since the April 2017 VA examination, the Veteran has been issued knee braces and a walking cane. The Veteran also reported at 2021 hearing that he may be considered for a knee replacement. 01/26/2021, Hearing Transcript. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran’s left and right knee disabilities. 38 C.F.R. § 3.327(a). 4. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran’s most recent VA hearing examination was conducted in April 2017. The results from this examination provided the basis to maintain a noncompensable rating for the Veteran’s bilateral hearing loss. However, the record suggests that the Veteran’s symptoms has since worsened. During the January 2021 Board hearing, the Veteran testified that that he has been issued hearing aids since the April 2017 VA examination. Additionally, the Veteran indicated that his hearing has noticeably worsened in the last two years, wherein the Veteran is often unable to understand conversation with people in the same room. 01/26/2021, Hearing Transcript. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran’s bilateral hearing loss disability. 38 C.F.R. § 3.327(a). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of his left and right knee strain with patellofemoral pain syndrome. The examiner should review the virtual file, including a copy of this Remand. The examiner is to complete the examination report form and is requested to specifically address: a. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare. b. If the Veteran describes experiencing flare ups, identify the: --frequency; --duration; --precipitating factors; and --alleviating factors. c. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to 30 degrees. Please explain why or why not. The extent, if any, of functional loss of use of the left and right knee due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran’s symptoms are most prevalent-such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   3. After completing directive # 1, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss, to include a description of the functional impacts of his hearing loss. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.