Citation Nr: 21021583 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-49 581 DATE: April 13, 2021 ORDER 1. Entitlement to service connection for a left knee disability as secondary to service-connected back and lower extremity disabilities is granted. 2. Entitlement to service connection for bilateral hearing loss is denied. REMANDED 3. Entitlement to increase in the staged ratings for a lumbar spine disability is remanded. 4. Entitlement to an increase in the staged ratings for a right knee disability is remanded. 5. Entitlement to service connection for a left wrist disability is remanded. 6. Entitlement to service connection for rheumatoid arthritis is remanded. 7. Entitlement to service connection for a left shoulder disability is remanded. 8. Entitlement to service connection for insomnia is remanded. FINDINGS OF FACT 1. Competent (medical) evidence reasonably supports that the Veteran’s left knee disability was caused by her service-connected low back and lower extremity disabilities. 2. The Veteran is not shown to have (or during the pendency of this claim to have had) a hearing loss disability of either ear. CONCLUSIONS OF LAW 1. Secondary service connection for a left knee disability is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. Service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the United States Navy from November 1998 to November 2003 (and had subsequent service in the Texas National Guard). These matters are before the Board of Veterans’ Appeals (Board) on appeal of September 2013, June 2014, and December 2015 Department of Veterans Affairs (VA) rating decisions. In her substantive appeals for the respective appealed rating decisions, the Veteran limited her appeals to increased ratings for lumbar spine and right knee disabilities and entitlement to service connection for a left wrist condition, left knee disability, rheumatoid arthritis, bilateral hearing loss, insomnia, and a left shoulder condition. In December 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. [A September 2013 rating decision increased (to 20 percent) the rating for the lumbar spine disability, effective February 24, 2012. A May 2015 rating decision granted service connection for right knee limitation of extension internal derangement (effective July 15, 2014) and assigned an increased (to 30 percent) rating from that date. A December 2020 AMA rating decision increased (to 40 percent) the rating for lumbar spine disability, effective July 28, 2020.] In January 6, 2021, VA received a waiver of Agency of Original Jurisdiction (AOJ) initial consideration of VA treatment records and VA examination reports received since the AOJ last adjudicated the claims. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1) a disability for which service connection is sought; (2) a disability that is already service connected; and (3) that the already service connected disability caused or aggravated the disability for which service connection is sought. See Shedden, 381 F.3d 1163. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to secondary service connection for a left knee disability is granted. The Veteran’s theory of entitlement in this matter is primarily one of secondary service connection (that her left knee disability is secondary to her service-connected right knee disability). She has established service connection for a right knee disability (rated 10 percent from November 2003 and 30 percent from July 2014). She has also established service connection for a low back disability (rated 10 percent from November 2003, 20 percent from February 2012, and 40 percent from July 28, 2020), bilateral lower extremity sciatica (rated 10 percent from June 10, 2015 and 20 percent from September 28, 2019) and bilateral lower extremity radiculopathy (rated 20 percent from July 28, 2020). On August 2015 VA knee examination (in connection with a claim for an increased rating for her right knee), the Veteran reported her right knee limp makes her use her cane or apply her entire weight balance on her left leg. On July 2016 VA knee examination (to assess the left knee), a left knee strain was diagnosed. The Veteran reported a gradual onset of left knee pain in 2009 which she alleged is due to favoring the right knee. The examiner opined against the claim, noting there was no gait or weight bearing disturbance on examination of severity sufficient to implicate the Veteran’s right knee condition as an etiology for or aggravation of her left knee. On August 2019 and November 2019 VA peripheral nerves examinations, an antalgic gait was noted. The November 2019 examiner opined the abnormal gait was due to bilateral lower extremity sciatica. On November 2019 VA knee examination, a left knee strain was diagnosed. The examiner opined (without including rationale) that there is no evidence that the Veteran’s left knee strain is related to her right knee condition. On September 2020 VA knee examination, a left knee strain and internal derangement of the service-connected right knee were diagnosed. The provider opined additional conditions were found which are directly due to or related to the service-connected diagnosis. He explained that strains are a direct progression of an established condition and resulted in impact of the opposite knee due to compensation. While there is conflicting evidence in the matter, the Board finds that the updated (September 2020) VA opinion places the evidence regarding whether the Veteran’s left knee disability was caused by her service-connected disabilities at least in equipoise. Against the claim (at least in part) are the July 2016 and November 2019 VA opinions. While the July 2016 examiner opined that her altered gait was not severe, she has since also been awarded service-connection (and increased ratings) for bilateral lower extremity sciatica and radiculopathy, which the November 2019 peripheral nerves examiner has opined alter her gait. The November 2019 VA opinion against the claim does not include rationale for the opinion, does not address aggravation, and is inadequate for rating purposes. In support of the claim is the September 2020 opinion. The September 2020 examiner opined that her left knee strain is a progression of her right knee disability caused by compensating for her right knee. The provider expressed familiarity with the Veteran’s record/medical history, and included rationale that cited to accurate factual data. The provider is competent to offer the opinion; the Board has no reason to question her explanation, and finds it to be probative evidence in the matter. Resolving reasonable doubt in her favor, as required in such circumstances (see 38 C.F.R. § 3.102), the Board finds that the Veteran’s left knee disability was caused by her service-connected disabilities. Accordingly, service connection for a left knee disability as secondary to service-connected disabilities is warranted. 2. Entitlement to service connection for bilateral hearing loss is denied. For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB 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 DD Form 214 shows that the Veteran’s military occupational specialty (MOS) was airman/supply-logistics. An August 2015 VA examiner noted his occupation involves working on the flight deck (with consequent exposure to noise). Accordingly, that she was exposed to excessive levels of noise during service may be conceded. What remains necessary to substantiate this claim is competent evidence that she now has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and that it is etiologically related to her service/exposure to noise therein. On January 2014 VA audiological assessment, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 5 10 10 0 10 Left 5 10 5 5 5 Speech audiometry revealed speech recognition ability of 100 percent in each ear. A June 2015 VA audiology assessment notes her hearing was within normal limits. On August 2015 VA audiological examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 15 15 5 5 15 Left 10 5 5 5 10 Speech audiometry revealed speech recognition ability of 100 percent in each ear. In a December 2015 statement, the Veteran reported that while working on the flight deck, she was exposed to excessive noise including the sound of jet blasts and tail hooks pounding the flight deck. An August 2020 VA treatment record notes complaints of extreme sensitivities to certain sounds. The provider noted normal hearing through 1000 Hz but [that the Veteran] winced in apparent pain at levels as soft as 0 decibels but was able to tolerate live voice instruction through headphones at 30 decibels. The provider opined there was no significant change in hearing from her 2015 audiogram. The provider counseled the Veteran that the results indicate an overall healthy ear and that sound sensitivities, such as misphonia and hyperacusis, are rooted in the subconscious processing of sound by the brain. The provider noted the Veteran’s mental health seemed to play a large role in her auditory symptoms. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether the Veteran has the disability for which service connection is sought, a hearing loss disability in either (or both) ear(s). Because hearing loss disability is defined by regulation, to satisfy the threshold requirement the Veteran must show that during the pendency of the instant claim she was found (by audiometry in accordance with 38 C.F.R. § 4.85) to have a hearing impairment that meets that regulatory definition. The evidence of record does not show that the Veteran has been found to have a hearing loss disability in either ear at any time during the pendency of the instant claim. 38 U.S.C. §§ 1110, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); 38 C.F.R. § 3.303(a), (d). Although the Veteran is competent to describe her perception of difficulty hearing, she is a layperson; because under governing regulation a hearing loss disability must be shown by specified testing by a state-licensed audiologist, she is not competent to establish sole by her own opinion that she has a hearing loss disability. Notably, at an August 2020 audiological consultation, the Veteran complained of sensitivities to even the faintest of sounds rather than a loss of hearing acuity. The Veteran has not identified any testing shows she has (or has had) a hearing loss disability (as defined in 38 C.F.R. § 3.385) . As a hearing loss disability is not shown, she has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 233 (1992). REASONS FOR REMAND 3. Entitlement to increase in the ratings for a lumbar spine disability. This matter stems from September 2013 rating decision. Her September 2013 filing has been construed as a notice of disagreement (NOD) with the September 2013 rating decision, initiating an appeal in the claim of an increased rating. In a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation; therefore, a claim remains in appellate status where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App, 35, 38 (1993). Accordingly, once a claim for an increased rating is placed in appellate status, the period addressed by a subsequent rating decision granting an increased rating remains part of the pending appeal, and cannot be separately appealed by filing a new NOD. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Legacy appeals were singled out as treated differently and the changes only applied if a claimant elected to participate in the new system either by (1) choosing to participate in VA’s test program the Rapid Appeals Modernization Program (RAMP) prior to February 19, 2019, or (2) submitting a VA Form 10182 after the issuance of a statement of the case (SOC) or supplemental SOC after February 19, 2019. 38 C.F.R. § 19.2(d). On July 28, 2020, VA received VA Form 20-0995 (supplemental claim form), in part, for an increased rating for her lumber spine disability. A December 2020 (AMA) rating decision awarded a staged increased (to 40 percent) rating for her lumbar spine disability, effective July 28, 2020. As the Veteran did not opt into RAMP during the valid period and no SOC or SSOC was issued after February 19, 2019 for her to submit a valid VA Form 10182, she has not validly opted into AMA and consideration of the appeal will proceed under the legacy system. See 38 C.F.R. § 19.2(d)(2). While VA received a waiver of Agency of Original Jurisdiction (AOJ) initial consideration of the evidence from the Veteran on January 6, 2021, the AOJ is still required to issue a SSOC in this matter as the December 2020 rating decision awarded a less than maximum staged increased rating for the lumbar spine disability and she is presumed to be seeking the maximum benefit allowed. See 38 C.F.R. § 19.31. An SSOC in this matter was not issued. Therefore, this matter must be remanded for correction of the procedural defect. 4. Entitlement to increases in the ratings for a right knee disability. The Veteran’s right knee disability is currently assigned a 30 percent rating for limitation of flexion and a 0 percent rating for limitation of extension. Knee disabilities may be assigned separate ratings for arthritis (established by x-ray findings) with compensable limitations of flexion and/or extension (or under Diagnostic Code (Code) 5003 based on painful motion), subluxation or instability, and dislocated or symptomatic post-removal semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04. While August 2015, November 2019, and September 2020 examiners found the Veteran does not have right knee instability, it was also noted that she has been prescribed and uses assistive devises (to include a cane, knee brace, and walker) and that her knee is sometimes unstable causing her to lose her balance at any time. The providers did not reconcile the Veteran’s regular use of a VA-prescribed knee brace and reported problems with balance with their findings of no instability. A May 2020 MRI of her right knee found a chronic full-thickness tear of the ACL. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As the knee disability picture presented suggests instability which would involve application of (Code) 5257, which has been updated in the new rating criteria, and the record does not contain sufficient evidence to rate the disability under the new rating criteria, another examination is needed. 5. 6. Entitlement to service connection for a left wrist disability and rheumatoid arthritis. At the December 2019 hearing, the Veteran testified that she fell down ladder rails during active service. An October 2020 VA MRI of the left wrist found a small amount of fluid within the DRUJ and focal radial TFC perforation that is probably chronic/degenerative and the findings suggested mild extensor carpi radialis tenosynovitis. She has not been afforded a VA examination to determine the etiology of her left wrist disability. Considering the state of the medical evidence, an examination to secure a medical opinion addressing the nature and likely etiology of the left wrist disability is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that her rheumatoid arthritis is related to her active service. On September 2020 VA non-degenerative arthritis examination, rheumatoid arthritis was diagnosed. On the September 2020 VA back examination, the examiner opined that degeneration of the spine is related to the primary injury of the lumbar and is wear and tear of the original condition to include rheumatoid arthritis and stenosis. In a December 2020 VA addendum opinion, an examiner clarified that rheumatoid arthritis is not a progression of lumbar strain as rheumatoid arthritis is an immune disorder. However, the examiner did not opine whether rheumatoid arthritis is related to service. Accordingly, development for an addendum medical opinion is necessary. 6. Entitlement to service connection for a left shoulder disability. In statements received on April 9, 2016, the Veteran expressed her intent to withdraw her claim seeking service connection for a left shoulder disability. In an April 28, 2016 letter acknowledging the withdrawal, she was informed that if she did not intend to withdraw her claim, she had 30 days from the date of the letter to so state. In a letter received May 5, 2016, she expressed she did not intend to withdraw her claim and requested it to be continued. Accordingly, her claim is deemed to not have been withdrawn and continues to remain on appeal in the Legacy appeal system. The Veteran alleges her left shoulder disability is due to trauma sustained in a fall in active duty service that also injured her right knee and low back. An October 2015 VA MRI of the left shoulder found minimal to mild acromioclavicular (AC) hypertrophy, mild downsloping acromion, distal supraspinatus and infraspinatus tendinosis and partial tendon tears. On November 2020 VA examination, a left shoulder sprain was diagnosed. The examiner did not opine regarding the etiology of all the left shoulder disabilities noted during the period on appeal. A medical opinion regarding the likely etiology of the Veteran’s left shoulder disability is necessary 7. Entitlement to service connection for insomnia. In her June 2015 claim, the Veteran asserted service connection for insomnia is warranted as secondary to her service-connected posttraumatic stress disorder (PTSD). In a May 2016 letter, her VA provider noted the Veteran endorsed symptoms consistent with insomnia disorder as well as nightmares associated with her PTSD. The provider noted the symptoms of PTSD and depression likely exacerbated her insomnia. In a September 2019 letter, the provider noted the Veteran reported having chronic sleep problems for many years. On November 2019 VA PTSD examination, her symptoms of PTSD included chronic sleep impairment. The record also shows she is service connected for PTSD. Whether the Veteran’s insomnia is a separate disability entity from her service-connected PTSD (and was caused or aggravated by PTSD, so as to warrant secondary service connection) or is merely a manifestation of the PTSD (not warranting a separate rating) is a medical question. See Jandreau, 492 F.3d at 1377. She has not been afforded a VA examination in connection with this claim. Under the circumstances presented, the low threshold standard (for determining when an examination or medical opinion is necessary) is met. See McLendon, 20 Vet. App. 79. Development for a medical examination to obtain a medical opinion is necessary The matters are REMANDED for the following: 1. Arrange for an orthopedic examination of the Veteran to assess the current nature and severity of her service-connected right knee disability and to determine the nature and likely etiology of her left shoulder and left ankle disabilities. The Veteran’s record (to include the Veteran’s statements reporting use of a right knee brace and describing problems with balance) must be reviewed by the examiner in conjunction with the examination. On review of the record and examination of the Veteran, the examiner should: (a.) Assess the current severity of the Veteran’s service-connected right knee disability. Any indicated tests or studies (specifically including updated x-rays and range of motion studies of the joint in active motion, passive motion, weight-bearing, and non-weight-bearing) should be completed. All pathology, symptoms (their frequency and severity), and any associated impairment of function should be described in detail. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors, including during flare-ups. The examiner should specifically indicate whether there is instability/subluxation of the knee. If instability or subluxation is not found, the examiner should reconcile such finding with the Veteran’s reported regular use of a VA-prescribed knee brace and her reports of problems with balance. The examiner must review the rating criteria under 38 C.F.R. § 3.71a prior to February 7, 2021 and the new revised rating criteria effective February 7, 2021. (b.) Identify (by diagnosis) each left wrist and left shoulder disability entity found/shown by the record. (c.) Identify the likely etiology for each left wrist and left shoulder disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it (1) began in (or is otherwise related to) the Veteran’s military active duty or (2) was caused or aggravated by (increased in severity due to) her service-connected disabilities. [The opinion must address aggravation.]? (d.) If a service-connected disability did not cause, but aggravated, a diagnosed left wrist or left shoulder disability, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. (e.) If a diagnosed left wrist or left shoulder disability is determined to be unrelated to service or a service-connected disability, identify the etiology considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. 2. Also arrange for the Veteran’s claims file to be forwarded to an appropriate to an appropriate clinician (a rheumatologist, if possible, if not, a physician with requisite expertise) for review and a medical advisory opinion regarding the likely etiology of her diagnosed rheumatoid arthritis. [If examination of the Veteran is deemed necessary, such should be arranged).] Upon review of the record, the consulting provider should: Identify the likely etiology of the Veteran’s rheumatoid arthritis. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to her active service (to include as due to injury therein)? If it is unrelated to her active service, identify the etiology that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to factual data and medical principles). 3. Arrange for the Veteran’s claims file to be forwarded to an appropriate (with experience in diagnosis/treatment of sleep problems/disorders) clinician for review and an addendum medical advisory opinion regarding the nature and etiology of the insomnia that. [If examination of the Veteran is deemed necessary, such should be arranged).] Upon review of the record, the consulting provider should: (a.) Regarding the insomnia disorder that has been opined to be related to her service-connected PTSD, indicate whether it is a separate (from the service-connected PTSD) disability entity or whether it is merely a manifestation of the service-connected PTSD disability (for consideration in rating PTSD). (b.) If insomnia is a separate disability entity, identify such entity it by diagnosis (and describe its manifestations and related impairment of function). All opinions must include rationale, citing to clinical findings and principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.