Citation Nr: 21026390 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-22 803 DATE: May 3, 2021 ORDER Entitlement to service connection for degenerative joint disease (DJD) of the right knee (right knee disability), claimed as chondromalacia right knee sprain, is granted. REMANDED Entitlement to service connection for bilateral hearing loss (HL) is remanded. Entitlement to service connection for degenerative joint disease (DJD) of the lumbar spine (back disability) is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his right knee disability is as least as likely as not related to active duty service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from September 1974 to September 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In March 2016, the Veteran timely submitted a notice of disagreement (NOD) and in February 2017 the RO issued a statement of the case (SOC). In April 2017, the Veteran perfected a substantive appeal and requested a hearing. In August 2019, the Veteran testified in person before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the record. In a November 2019 decision, the Board remanded these issues for additional development, which has not been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for DJD of the right knee, claimed as chondromalacia right knee sprain, is granted. The Veteran is seeking service connection for his right knee disability. Specifically, he contends that his current disability is related to a dislocation of his right knee during service. He reports that his knee has been causing him problems since service. See August 2019 Board Hearing Tr. A veteran is entitled to VA disability compensation if there is a current disability resulting from a personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in a disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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, 53 (1990). Regarding the first and second elements of service connection, the Veteran is currently diagnosed with a right knee disability. The record also shows that following complaints of right knee pain and of a locked or "tricked" knee during service, the Veteran was assessed with chondromalacia. See February 2020 VA Examination; June 1978 Service Treatment Record (STR); April 1978 STR; July 1977 STR. Accordingly, the first and second elements of service connection, that of a currently diagnosed disability and the occurrence of an inservice event or injury, have been met. The salient question to be answered is thus whether the Veteran's current knee disability is related to his military service. Turning to the evidence of record, in May 2012, the Veteran was afforded a VA examination, the examiner opined that it was less likely than not that the Veteran's disability was related to service. He explained that the Veteran served many months and had normal exit exam; after discharge he needed no significant prescription until recently; and x-ray changes are bilaterally equal and moderate which reflects age and size and are typical changes. Severe changes on the right knee would have been seen if post trauma. In May 2015, the Veteran submitted buddy statements describing the Veteran experiencing knee pain since service. See also August 2019 Board Hearing (Veteran testifying to having had problems with his right knee since service). In a May 2015 private medical opinion, the Veteran's orthopedist, based on the Veteran's medical history and service record, opined that the Veteran's right knee pain began as a result of his inservice injury in 1976. In March 2020, the AOJ obtained a VA opinion. The examiner opined that it is less likely than not that the Veteran's right knee disability is related to service. By way of rationale, the examiner quoted the May 2012 VA examiner's opinion and stated that he agreed. In this case, the Board finds the May 2012 VA examiner's report and the March 2020 VA opinion to be inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted in the November 2019 Board decision, the May 2012 examiner's opinion is inadequate because he failed to account for the Veteran's competent lay evidence of ongoing right knee pain since discharge from service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Dalton v. Nicholson,21 Vet. App. 23 (2007). The March 2020 VA opinion is likewise inadequate because it merely quotes the May 2012 VA opinion. Accordingly, these opinions are of little, if any probative value. Contrastingly, the Board finds the May 2015 private medical opinion providing a positive nexus opinion to be competent, credible, and highly probative. The Veteran's treating physician accounted for his lay statements and provided a finding based on an accurate review of the Veteran's medical and service treatment history. The Board also acknowledges that the Veteran has asserted that he has experienced symptoms since service and has been consistent in his assertions; the Board thus finds these statements competent and credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Based on the foregoing, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran's right knee disability began during and has continued since service. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran's right knee disability was caused by active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Therefore, the three elements of service connection have been met and entitlement to service connection for a right knee disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is seeking service connection for bilateral hearing loss (HL). Specifically, he contends that he was a mechanic on a flight line and exposed to loud noises. See August 2019 Board Hearing Transcript. Pursuant to the remand directives, in January 2020, the Veteran was afforded a VA examination. The examiner opined that it is less likely than not that the HL is related to service because there was no threshold shift during service. The examiner provided medical literature to support his opinion. The Board finds this VA opinion inadequate for adjudicative purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner opined that the Veteran's hearing loss was not due to military noise exposure, relying solely on the absence of documented hearing loss in his STRs. The examiner also failed to address the Veteran's competent lay assertions regarding hearing problems since service and his inservice MOS. Accordingly, a remand is warranted for a new VA opinion. 2. Entitlement to service connection for DJD of the lumbar spine is granted. The Veteran is seeking service connection for a back disability. Specifically, he contends that during service, while performing his duties he slipped and strained his back. His back has caused him problems since service. See August 2019 Board Hearing Transcript; August 2014 Buddy Statement. Pursuant to the remand directives, in February 2020, the Veteran was afforded a VA examination. The examiner opined that it is less likely than not that the back disability is related to service. He explained that following a review of STRs, the Veteran's low back strain was treated and there is no evidence to suggest recurrent or chronic back pain related to his back symptoms in 1977. The Board finds this VA opinion inadequate for adjudicative purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the examiner fails to consider the lay assertions and medical treatment records indicating that the Veteran has experienced back pain since service. Accordingly, a remand is warranted for a new VA opinion based on the entirety of the record. 3. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. The Veteran is seeking service connection for a left knee disability. Specifically, the Veteran contends that his left knee disability is related to his herein service-connected right knee disability because he has had to favor his left knee. See August 2019 Board Hearing Transcript. Pursuant to the remand directives, in February 2020, the Veteran was afforded a VA examination. The examiner opined that it is less likely than not that the left knee disability is related to service. He explained that there was no indication that the Veteran's left knee was injured during service or aggravated by his right knee disability. The Board finds this VA opinion inadequate for adjudicative purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the examiner fails to consider the lay assertions indicating that the Veteran has experienced left knee pain and that he favors his left knee because of difficulty with his right knee. The examiner also fails to address a May 2015 private opinion in which the Veteran's treating orthopedist opined that it was presumable that the Veteran's left knee disability is due to many years of favoring the left knee because of his right knee disability. In addition, the examiner does not address the causation prong of secondary service connection. Accordingly, a remand is warranted for a new VA opinion based on the entirety of the record. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's HL. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's HL had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to an in-service injury or due to the Veteran's MOS? In doing so, the examiner should consider the Veteran's competent assertions regarding HL since service. See August 2019 Board Hearing Transcript. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's back disability. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's back disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to an in-service injury? In doing so, the examiner should consider the Veteran's competent assertions and the submitted buddy statements regarding the Veteran's symptoms since service. See August 2019 Board Hearing Transcript; February 2014 Buddy Statement. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's knee disability, to include as secondary to right knee disability. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The examiner should opine: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran's left knee disability began during service or is related to service, to include as due to his MOS? (b.) Is it at least as likely as not the Veteran's left knee disability is proximately due to his right knee disability? (c.) Is it at least as likely as not the Veteran's left knee disability is aggravated beyond its natural progression by his right knee disability. In doing so, the examiner should address the Veteran's lay assertions regarding favoring his left knee due to his right knee disability and the May 2015 private opinion in which the Veteran's treating orthopedist opined that it was presumable that the Veteran's left knee disability is due to many years of favoring the left knee because of his right knee disability. 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). 5. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.