Citation Nr: 21024577 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-11 405A DATE: April 23, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a left shoulder disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. In a June 2010 rating decision, the RO denied the Veteran’s claim for service connection for a right knee disability. The Veteran did not timely perfect an appeal of this determination, and no new and material evidence was received within one year of notice of this decision. 2. Evidence received since the June 2010 rating decision including the Veteran’s October 2014 statement that he initially experienced his current right knee disability while in service, is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. 3. The Veteran has a current bilateral hearing loss disability for VA compensation purposes that is consistent with his in-service noise exposure. 4. The Veteran has a current tinnitus disability that is consistent with his in-service noise exposure. 5. Resolving reasonable doubt in the Veteran’s favor, the evidence of record favors a finding that the Veteran has a cervical spine disability that is related to his service-connected lumbar spine disability. 6. The Veteran’s left shoulder disability is not related to an in-service injury, disease, or event. CONCLUSIONS OF LAW 1. New and material evidence has been received since the June 2010 denial, and the claim of entitlement to service connection for a right knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 2. The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 4. The Veteran’s cervical spine disability was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 5. A left shoulder disability was not incurred in active military service. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1993 to August 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal of June 2013, July 2014 and February 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Laws and Regulations 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). 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis and sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis and sensorineural hearing loss is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. 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, (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). 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(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Hearing Loss and Tinnitus For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Factual Background and Analysis The Veteran contends that his current bilateral hearing loss and tinnitus disabilities were incurred in service. The Veteran’s service treatment records are negative for complaints of, treatment for, or findings of bilateral hearing loss or tinnitus. The Veteran also claims that the hydrocodone he takes for his service-connected lumbar spine disability has caused his hearing loss. The Veteran’s December 1991 enlistment examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 5 10 LEFT 20 15 5 5 10 The Veteran’s August 1998 separation examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 5 10 LEFT 15 10 5 5 15 The Veteran underwent a VA examination in July 2014.   A July 2014 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 5 10 LEFT 15 10 5 5 15 The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of military service. The examiner noted that the Veteran’s enlistment and separation audiograms indicated normal hearing thresholds after the military related noise exposure. An October 2014 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 20 n/a 25 LEFT 40 35 30 n/a 40 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. The underwent a VA audiological examination in January 2016. A January 2016 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 25 30 LEFT 35 30 35 30 45 The examiner indicated that he could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to mere speculation. The examiner opined that it was less likely than not that the Veteran’s current bilateral hearing loss was proximately due to or the result of the Veteran’s medications that he took for his service-connected acquired psychiatric disorder and lumbar spine disabilities as it was not clear that narcotics were the cause of the hearing loss. The examiner found that it was at least as likely as not that the Veteran’s tinnitus was a result of his bilateral hearing loss. The record shows that the Veteran currently has bilateral hearing loss for VA compensation purposes and a diagnosis of tinnitus. Accordingly, the first element of evidence of a current disability is accordingly met. Therefore, the question to be decided in the present appeal is whether the current bilateral hearing loss and tinnitus disabilities are associated with the Veteran’s active duty. In this regard, the Board acknowledges that service treatment records are negative for complaints of, treatment for, or findings of hearing loss or tinnitus. However, when considering the circumstances of the Veteran’s service, he was undoubtedly exposed to some noise in service and his in-service noise exposure has been conceded. Notably, the Veteran has also described his specific in-service noise exposure while also noting that he had noticed ringing in his ears since his time spent in the military. The Board acknowledges that the July 2014 VA examiner opined that it was less likely than not that the Veteran had bilateral hearing loss as a result of his in-service noise exposure. However, the negative nexus opinion that was provided by the July 2014 VA examiner appears to be based in part on the absence of documented hearing loss disability in the Veteran’s service treatment records as the examiner noted that the Veteran’s enlistment and separation examinations both demonstrated normal pure tone audiometry with no significant changes in hearing. The absence of documented hearing loss is service is not fatal to a service connection claim for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As a result, when affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for bilateral hearing loss. Regarding the Veteran’s tinnitus disability, as noted above, the Veteran reported that he experienced tinnitus since his service. Further, the January 2016 VA examiner specifically indicated that the Veteran’s tinnitus was as likely as not related to his now service-connected bilateral hearing loss. Accordingly, when affording the Veteran the benefit of the doubt, the Board finds that service connection is also warranted for tinnitus. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claims, and a remand would only serve to unnecessarily delay final adjudication of the claims. In sum, for the reasons and bases discussed above, all doubt is resolved in favor of the Veteran, and service connection for a bilateral hearing loss disability and a tinnitus disability, is warranted. See 38 U.S.C. § 5107(b). Cervical Spine The Veteran contends that his current cervical spine disability is secondary to his service-connected lumbar spine disability. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a cervical spine disability is warranted as the evidence demonstrates that the Veteran has a current cervical spine disability that is proximately due to and aggravated by his service-connected lumbar spine disability. Initially, the Board notes that there is a current diagnosis of a cervical spine disability as the Veteran has arthritis and cervical radiculopathy as well as cervical spondylosis. Accordingly, the first element for service connection is established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that there are conflicting opinions as to whether the Veteran’s current cervical spine disability is secondary to his service-connected lumbar spine disability. The Veteran underwent a VA examination in January 2015. The VA examiner opined that it was at least as likely as not that the Veteran’s cervical spine disability was proximately due to or the result of his service-connected lumbar spine disability. The examiner noted that the Veteran had progressive narrowing of the disc spaces “all up and down his entire spine” that had resulted in a lumbar laminectomy and radiculopathy of the upper and lower extremities. However, a February 2015 VA examiner opined that it was less likely as not that the Veteran’s cervical spine disability proximately due to or the result of his service-connected lumbar spine disability nor was it aggravated beyond its natural progression by the lumbar spine disability. The examiner noted that lumbar spine problems did not cause cervical spine problems unless there was a systemic diagnosis which was not the case with the Veteran. The examiner instead indicated that it looked as though there was a congenital component in the narrowing of the canal both in the lumbar and cervical spines but that the lumbar spine problems did not cause nor aggravate the cervical spine. Notably, while the VA examination in February 2015 VA examiner found that it was less likely as not that the Veteran’s cervical spine disability proximately due to or the result of his service-connected lumbar spine disability nor was it aggravated beyond its natural progression by the lumbar spine disability, the more recent January 2015 opinion of the VA examiner specifically noted that the Veteran’s cervical spine disability was secondary to his service-connected lumbar spine disability as the Veteran had progressive narrowing of the disc spaces “all up and down his entire spine” that had resulted in a lumbar laminectomy and radiculopathy of the upper and lower extremities. Additionally, the Board notes that while the February 2015 VA examiner noted that it looked as though there was a congenital component in the narrowing of the canal both in the lumbar and cervical spines, the Veteran is currently service connected for a lumbar spine disability as a result of back problems that originated in service as determined by a January 2010 VA examiner. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current cervical spine disability that was caused or aggravated by his service-connected lumbar spine disability. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for a cervical spine disability is granted. See 38 U.S.C. § 5107(b). Left Shoulder The Veteran’s service treatment records demonstrate that the Veteran was treated in the emergency room for a left shoulder injury in November 1993. The Veteran’s August 1998 separation examination was negative for treatments, complaints or diagnoses related to a left shoulder disability. The Veteran underwent a VA examination in January 2010. The examiner noted that the Veteran’s shoulder examination was negative. The Veteran underwent a VA examination in April 2013. The diagnosis was a rotator cuff sprain. The examiner noted that a November 1993 treatment note reported that the Veteran was status post a fall off of a rack. There was tenderness of the left shoulder but x-rays were negative. The examiner opined that it was less likely than not that the Veteran’s left shoulder disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that while the Veteran presented in-service on one occasion for left shoulder pain, he had no complaints on his separation examination in 1998. Based on only the 1 evaluation in 1993 for a left shoulder condition and no further mention of the complaint in the remaining 5 plus years of his military service, it was less likely than not that the Veteran’s current left shoulder disability was a continuation from his military service. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a left shoulder disability is not warranted. Initially, the Board notes that there is a current diagnosis of a left shoulder disability as the Veteran has a rotator cuff sprain. Accordingly, the first element for service connection is established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Veteran’s service treatment records reflect that the Veteran injured his left shoulder in November 1993. Despite these complaints and diagnosis, the service treatment records, however, were negative for any or diagnoses of any chronic left shoulder disability. Notably, the Veteran’s August 1998 separation examination was negative for complaints or diagnoses of a left shoulder disability. The Board finds that the weight of the evidence is against a finding that a current a left shoulder disability is etiologically related to the Veteran’s military service. In fact, the only medical opinions addressing the etiology of the claimed left shoulder disability weigh against the claim. As noted above, the April 2013 VA examiner opined that it was less likely than not that the Veteran’s current left shoulder disability was incurred in or caused by the claimed in-service event, injury or illness. In making this conclusion, the examiner specifically noted that while the Veteran presented in-service on 1 occasion for left shoulder pain, he had no further mention of the complaint in the remaining 5 plus years of his military service to include his separation examination in 1998. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented any such existing medical evidence or opinion. In sum, the Board finds that service connection for a left shoulder disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes the Veteran and his representative’s contentions regarding the etiology of his claimed left shoulder disability. To the extent that the Veteran and his representative themselves contend that a medical relationship exists between his claimed left shoulder disability and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a left shoulder disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed left shoulder disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran and his representative’s assertions that there is a relationship between his claimed left shoulder disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. Regarding the Veteran’s claims for service connection for a right and left knee disability, the Board notes that the Veteran contends that he has a bilateral knee disability that is due to his service to include as secondary to his service-connected lumbar spine disability. The Veteran underwent VA examination in January 2016. The examiner opined that it was less likely than not that the Veteran’s claimed bilateral knee disability was related to his lumbar spine disability. However, the examiner did not address whether the Veteran’s service-connected lumbar spine disability has aggravated his bilateral knee disability. As such the Board finds that the evidence currently of record is insufficient to resolve the claims for a right and left knee disability and that further medical clarification in connection with these claims is warranted to determine whether the Veteran’s current right or left knee disability was caused or aggravated by a service-connected lumbar disability. Accordingly, the Board finds that he should be scheduled for a VA examination and opinions to determine whether the Veteran has a current right and left knee disability that is related to service to include as being caused or aggravated by a service-connected disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) (4). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his right and left knee disabilities. The examiner should determine the nature, extent of severity, and etiology of any right or left knee disabilities which may have been present at any time during the pendency of this appeal. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right or left knee disability is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that any such current right or left knee disability is caused or aggravated by his claimed service-connected lumbar spine disability. If the examiner finds that the Veteran has a current right or left knee disability that has been permanently aggravated/worsened by his lumbar spine disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then   be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.