Citation Nr: 21024512 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-64 824 DATE: April 23, 2021 ORDER Entitlement to service connection for tinnitus is granted is granted. Entitlement to service connection for low back arthralgia is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his military service. 2. The evidence is sufficient to show that the Veteran has low back arthralgia which had its onset in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for low back arthralgia have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from June 2003 to June 2007 and is a veteran of the Gulf War Era. He served two deployments to Iraq where he was awarded the Combat Action Ribbon. His military occupational specialty (MOS) was as an infantry Marine. He had additional service in the Marine Corps Reserve and as a member of the Virginia National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). In his June 2015 Notice of Disagreement (NOD) the Veteran indicated his disagreement with the AOJ decision to deny all claims presented, which were entitlement to service connection for (1) tinnitus, (2) low back condition, (3) bilateral knee condition, (4) bilateral hearing loss, and (5) posttraumatic stress disorder (PTSD). The Veteran requested a Decision Review Officer (DRO) de novo review of the claims. That was provided in the November 2017 Statement of the Case (SOC) which continued the denials for the (1) bilateral hearing loss, (2) tinnitus, (3) low back condition, and (4) bilateral knee condition claims. The bilateral hearing loss claim was denied on the basis that the Veteran did not have a current diagnoses of hearing loss significant enough to meet the auditory thresholds required to permit compensation for VA purposes. 38 C.F.R. § 3.385. The Veteran’s claim for entitlement to service connection for PTSD as granted in a later rating decision of November 2017. As that decision constituted a full grant of the claim for PTSD, the issue is no longer before the Board and it is dismissed as the Board no longer has jurisdiction over the issue. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); 38 U.S.C. § 7104, 38 C.F.R. § 20.104. In his December 2017 Appeal to the Board, VA Form 9, the Veteran identified only the claims of entitlement to service connection for (1) tinnitus, (2) low back condition, and (3) bilateral knee condition, to be the issues on appeal. These are the only issues certified to the Board in the September 2018 Certification of Appeal, VA Form 8. The Board only has jurisdiction on these three issues. In January 2020, the Veteran appeared at a hearing (Board Hearing) before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA and only for injuries incurred during INACDUTRA. See 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 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, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial. Service connection for certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307(a)(3), 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is different than most medical disabilities in that it is readily observable by laypersons, and separate medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). In recognition of the difficulty of collecting or preserving proof of service-connected combat conditions, 38 U.S.C. § 1154(b) allows the Board to consider the Veteran’s lay statements concerning an in-service injury to be deemed credible if they are consistent with the facts and circumstances of the Veteran’s service, despite an absence of official records. This evidentiary mechanism involves a three-step analysis. First, it must be determined whether the Veteran has presented satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. Next, it must be determined whether the evidence is "consistent with the circumstances, conditions, or hardships of such service." Id. If these two steps are met, VA shall accept the evidence as "sufficient proof of service-connection regardless of the absence of official records. In the third and final step of the analysis, it must be determined whether the government came forward with enough evidence to rebut the presumption with "clear and convincing evidence to the contrary." Id.; see Maxson v. Gober, 230 F.3d 1330, 1332-1333, (2000). Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 1. Entitlement to service connection for tinnitus is granted The Veteran seeks entitlement to service connection for tinnitus. He contends that he has experienced ringing in his ears during and since service after he was exposed to loud noises and acoustic trauma while participating in combat operations in Iraq. VA acknowledges that the Veteran has a currently diagnosed disability of tinnitus. See Rating Decision, April 2015; see also VA audiological evaluation, P.H.S., P.B., Au. D., March 2015 (“(+) tinnitus subjective”). Giving the benefit of any reasonable doubt to the Veteran, the Board finds that the evidence is at least in equipoise and, therefore, finds that his tinnitus began in and as a result of his military service. In its April 2015 rating decision, the AOJ denied the Veteran’s claim for tinnitus on the stated belief that this condition neither occurred in nor was caused by service. This was based on the opinion of the VA examiner who prepared the March 2015 audiological DBQ of the Veteran. In this opinion, the VA examiner stated that the Veteran’s tinnitus was less likely than not (less than 50 percent) related to his military service as there was no pathology to render a diagnosis; and that his “ringing” is transient in nature – “comes and goes” – which occurs in a high percentage of individuals with normal hearing and his noise exposure did not contribute to the condition as it was not constant. The Veteran provided testimony, both during his Board Hearing and in written statements, as well as statements to his examining medical providers, that during his deployments to Iraq, for which he was engaged in combat, he was subjected to acoustic trauma from weapons and being near explosions, including from numerous improvised explosive devices (IEDs). He provided a copy of a military service treatment record (STR) page for a hand injury which he incurred as a result of an IED explosion. The Veteran testified that he experienced ringing in his ears which started between his deployment to Iraq, in or around 2005, but he then experienced continual episodes of ringing in his ears ever since, which he stated “it never went away,” though this was not described constant. See Board Hearing Transcript, pages 3-5 and 22-24. The Veteran provided a written “buddy” statement from Corporal J.E., who verified the Veteran’s exposure to IED explosions and other combat acoustic trauma sources such as gun fights and mortar blasts which caused momentary loss of hearing and very painful sound return. Corporal J.E. submitted another written statement which documented the September 2004 IED explosion which caused injury to the Veteran’s hand and caused him to seek aid at his Battalion Aid Station. Based on the review of the record, and the provisions of 38 U.S.C. § 1154(b), the Board finds that the Veteran suffered acoustic trauma due to combat and accepts this as satisfying the in-service disease or injury element of claims for service-connected tinnitus. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). This is bolstered by the Veteran’s testimony that he began experiencing noticeable ringing in his ears after his first combat deployment and prior to his second and that the ringing in his ears never went away. The Board reiterates that the Veteran is considered competent to report symptoms which indicate the onset and continued presence of tinnitus. See Charles, 16 Vet. App. 370. The Board finds nothing in the record which impugns his credibility on that matter, and the record does contain contemporaneous written evidence which corroborates his testimony and therefore finds him and Corporal J.E. credible. Therefore, as the Board must resolve any reasonable doubt in the Veteran’s favor, the claim for entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for low back arthralgia The Veteran asserts that his lower back pain condition had its onset in service or is related to his service. This claim was denied by the AOJ on the stated bases that there was no current diagnosis of low back disability; and that while the Veteran’s STRs show that low back pain was noted in a separation examination in April 2007, there was no showing of permanent residual or chronic disability subject to service connection, or of persistent disability present in service and no continuity of symptoms from service to the present. Based on the evidence of record, the Board disagrees and finds that the Veteran does have a current disability which is related to and incurred during his military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Veteran has a current low back disability, which meets the first element to establish entitlement to service connection. Holton, 557 F.3d at 1366. The Veteran sought treatment for his low back pain from a private medical provider, A.F.C.C., Dr. R.M., who diagnosed him with “lumbaglia,” coded under the International Classification of Diseases (ICD) diagnosis code 724.2, which is for lumbago. Lumbago is defined as pain in the lumbar region. Dorland’s Illustrated Medical Dictionary (hereinafter Dorland’s), page 1092, (31st ed. 2007). Recently, the United Sates Federal Circuit Court (Court) clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The Court found that the term “disability,” as used in 38 U.S.C. § 1110, “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Here, the Veteran states that he has suffered functional impact due to his low back condition, including that he applied for and received special accommodation for this condition from his employer who provided him with an adjustable standing desk set-up. He also states that he uses an exercise ball as his chair to sit at his desk and this condition and that his back condition was a large part of the reason for him changing jobs from a federal police officer to becoming an agent with the United Sates Federal Bureau of Investigation (FBI). He also described sleep disturbance and loss, pain and numbness, and that it impacted his ability to do household chores. See Board Hearing transcript, pages 11, 13 to 15. The Veteran told Dr. R.M. that his low back pain condition flares up when he is in the car for long periods and when he carries his duty gun-belt, at the time the Veteran was a federal police officer. The Board finds the Veteran to be both competent and credible in his testimony. Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159 (a). Therefore, giving the Veteran the benefit of any reasonable doubt, the Board finds that the Veteran meets the requirements under Saunders and has a qualifying current diagnosis of low back pain. Similarly, the Board finds the Veteran to be competent and credible concerning his testimony to meet the second and third elements to establish entitlement to service connection for his low back condition; that he experienced injury to his back during his military service, much of which included combat operations, and that there does exist a nexus between his disability and his military service. Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303. The Veteran stated during his Board Hearing that he was involved in at least three Humvee (military vehicle) accidents, he was near several IED explosions, that he was a vehicle gunner during combat operations on numerous occasions, and that he often had to carry excessively heavy loads during military foot based maneuvers. He further stated that he developed back pain during this time but that his back problems were not so severe to cause him to seek medical treatment which could have taken him away from his unit or possibly jeopardized his career and advancement potential. See, Board Hearing transcript, passim; See also, generally, “Buddy” statement from Dr. W.H. Given that most of these events and injury developments described occurred during combat operations, the Board gives deference to these statements which are consistent with the circumstances and duties of his combat military service. 38 U.S.C. § 1154(b). Further, the Veteran did indicate on his military separation physical documents that he experienced back pain which was not noted on his entrance physical examination documents. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA 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, 53 (1990). The Veteran’s claim for entitlement to entitlement to service connection for a low back condition is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disorder is remanded. The Veteran claims that he suffers from a bilateral knee condition which is related to his military service. The Veteran was not provided a VA examination. The AOJ denied this claim on the bases that he does not have a current diagnosed disability, and that his military records do not show any direct knee injuries or permanent residuals of a chronic disability. The Board finds that the evidence before it at this time is not adequate for it to make a reliable determination on this issue, including if the Veteran has a current diagnosed disability in both or either of his individual knees which is attributable to this military service. Therefore, the matter is remanded for the Veteran to be provided a VA examination of his knees. The Board acknowledges the Veteran’s combat experiences and the general rigors they physically place on one’s body. The Board notes the Veteran’s various statements related to the impact of this military on his knees, both during and after military service. Additionally, the Board notes the statements provided by the Veteran’s “buddies” Corporal J.E., and Dr. W.H. which confirm and provide specific details concerning the Veteran’s experiences in the military, and in the case of Dr. W.H., after he left the service. Despite this, the Board is not able to determine if the Veteran has a diagnosed disability for his bilateral and/or left knees, including based on manifestation of pain as allowed in the holding in Saunders, 886 F.3d 1356. The Board finds that the Veteran does have a current diagnosed disability in his right knee, however there were two post-service intervening incidents which lead to him having surgery on his right knee due to a work-related incident. See, Board Hearing transcript, page 21. Therefore, the Board is unable to determine if the impact of his military service was a contributing factor for this current disability. First, the Veteran stated that this surgery was related to a work-related incident for which he underwent knee surgery which he described as a hyperextended medial patellofemoral ligament (MPFL). See, Board Hearing transcript, page 21. There is a lack of records related to the Veteran’s work-related incident which he states was processed via a worker’s compensation process. See, Board Hearing transcript, page 28. These records would be very helpful. Additionally, the Veteran suffered right knee injury due to a skiing incident in 2014. In fact, the Veteran stated that he suffered two right knee “twists” and after the first incident he continued to ski until the second incident occurred. This injury was described as a right knee sprain. See, G.S., March 27, 2014 office visit note – Encounter 4, received by VA on February 20, 2020. Prior to these post-service right knee injuries, the evidence of record does not show a diagnosis of a disability in either or both knees. The list of 8 encounters in the medical records submitted by the Veteran on February 20, 2020, begin with encounter 1 in November 2012, but does not identify knee injuries until encounter 4 in March 2014, as described above. See, G.S., March 27, 2014 office visit note – Encounter 4. No bilateral or left knee problems were identified at this time and examination of the left leg was described as “normal strength and tone.” Id. In his statement provided to the VA, the Veteran’s “buddy” Dr. W.H., identifies himself as a physical therapist who owns his own orthopedic practice, and he is a longtime friend of the Veteran with whom he has had contact on a regular basis for over 20 years. Dr. W.H., indicated that during the course of the Veteran’s time in the service, he mentioned more of his back and knee pain and discomfort. Dr. W.H. discussed the tendency for active military member to not seek treatment for injuries, especially during periods of conflict, out of a sense of duty, command pressure, and guilt for other Veterans who were injured more seriously than themselves. Dr. W.H. also discussed what he understood to be the Veteran’s continued back and knee problems after he left active service and pursued his career in Federal law enforcement. Based on his professional opinion, Dr. W.H. stated the Veteran’s pre-existing risk factors of back and knee pain increased his risk for injury on the job and that medical literature has established that pain will alter the movement mechanics in otherwise healthy people which lead to maladaptive movement which place greater strain on the body ara effected and significantly increases injury risk. He did not, however, state that he provided actual medical treatment or examination of the Veteran. The Board finds Dr. W.H.’s letter opinion to not be very probative at this time given the lack of other records which would tend to corroborate his opinion, which is not based on an actual examination of the Veteran. The fact that there are no other medical diagnoses of knee disabilities prior to his post-service incidents, as well as a general lack of evidence in the records which could verify if the Veteran sought medical treatment for knee problems prior to the identified post-service right knee incidents. A VA examination or opinion is necessary if the evidence of record (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). In making any determination, the Board must consider all evidence of record before it. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that additional development is needed, as well as the Veteran being provided a VA examination which takes into consideration the Veteran’s statements related to his military experiences and post-service history, as well as the opinion of Dr. W.H., in light of Saunders. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide copies of relevant documents and/or the name and other contact information, along with appropriate document release authorization forms, for anyone maintaining records related to the following: (a.) Medical treatment providers or examiners related to his work-related right knee injury which lead to his having surgery, including the medical providers who performed this surgery, (b.) Copies of documents related to his workers compensation claim through its ultimate determination, for his work-related right knee injury, (c.) Medical treatment providers related to the January 2014 skiing incident which caused him to injure his right knee, including onsite medical providers such as EMS or emergency room providers, (d.) Medical providers and records related to the Veteran seeking treatment for any knee condition from after he separated from the military to the present, not already provided, (e.) Employment related documents related to the Veteran’s claims that his knee conditions caused him difficulties at work, medical accommodation requests, or reassignment, physical fitness test records, and any employment physicals performed, and (f.) Any additional evidence which the Veteran believes supports these claims and theories of entitlement. The Veteran is to be given a reasonable period of time to reply. 2. Provide the Veteran a VA medical examination for his claimed knee conditions. The examiner is to review the Veteran’s entire file related to the claimed condition, including the Veteran’s statements and the letter from Dr. W.H. After review of the Veteran’s file the examiner should address the following: (a.) The examiner should issue a medical opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran has a (1) bilateral knee disability (2) left knee disability, and/or (3) right knee disability which had its/their onset in service or are related to his service. The opinion must take into consideration the allowances for a disability to be found on complaints of pain with corresponding functional loss, pursuant to the holding in Saunders v. Wilkie, 886 F.3d 1356 (2018). (b.) The above requested opinions should include analysis of the opinion letter of Dr. W.H., including his opinion that the Veteran’s “pre-existing risk factors of back and knee pain placed him at a well above average likelihood for injury on the job.” The examiner is also asked to specifically identify if the Veteran had a right knee disability prior to the identified 2014 skiing injury and his work-related injury, and if that disability made him more prone to the later injuries to his right knee. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.