Citation Nr: 21030927 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-62 127 DATE: May 20, 2021 ORDER Service connection for left hand disability is denied. Service connection for right hand disability is denied. Service connection for left elbow disability is denied. Service connection for right elbow disability is denied. Service connection for left knee disability is denied. Service connection for right knee disability is denied. Service connection for sinusitis is denied. REMANDED Entitlement to service connection bilateral hearing loss is remanded. Entitlement to service connection for allergic rhinitis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has a bilateral hand disability. 2. The preponderance of the evidence of record is against finding that the Veteran has a bilateral elbow disability. 3. The preponderance of the evidence of record is against finding that the Veteran has a bilateral knee disability. 4. The preponderance of the evidence of record is against finding that the Veteran has sinusitis. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hand disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for bilateral elbow disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1992 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). In March 2021, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hand, bilateral elbow, and bilateral knee disabilities and sinusitis. In May 2016, the Veteran filed his original claim for hands, elbows, knees, and sinusitis, which was denied by rating action of August 2016 based on lack of a current diagnosed disability. Upon review of the evidence, the Board finds the weight of the evidence is against the finding of a present disability for which entitlement for service connection can be established. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the evidence does not indicate a current diagnosis of disability for the claimed hands, elbows, knees, and sinusitis at any point during the course of this appeal. The Veteran's service treatment records are absent for any complaint, treatment, or findings for hands, elbows, knees, and sinusitis. In fact, he had normal findings on separation clinical examination with no symptoms reported by the Veteran. See Report of Medical Examination and Report of Medical History dated July 1996. Likewise, post-service medical records are absent for any treatment or diagnosis of a disability. The Veteran was afforded VA examinations in July 2016, which the Board finds highly probative. See Hand and Finger Conditions Disability Benefits Questionnaire (DBQ); Elbow and Forearm Conditions DBQ; Knee and Lower Leg Conditions DBQ; Sinus and Rhinitis DBQ and VA medical opinions dated July 2016. After thorough review of the claims file and personal examination of the Veteran, the VA examiner found no evidence of the claimed conditions and that a clinical diagnosis was not rendered on examination. Id. In support of such finding, the examiner also noted review of the Veteran's service treatment records and that his July 1996 separation examination and report of history were silent for hand/elbow or any knee complaints. The examiner added that there was no documentation for evaluation, diagnosis, or treatment of a sinus condition following military service. Id. To the extent that the Veteran claims he has a current disability, his lay assertions are not considered competent medical evidence. Although he is certainly capable of describing the history in this case and competent to report symptoms which are within the realm of his personal experience, he is not competent to render a medical diagnosis of a disability, as this requires medical expertise and the ability to interpret diagnostic medical testing, including X-ray imaging. Davidson v. Shinseki, 581 F.3d 1313 (2009). For this purpose, the Veteran's statements, standing alone, have little probative value, and the Board assigns more weight to the objective medical evidence of record, including the July 2016 VA examination reports and medical opinions. Furthermore, the Veteran has not submitted any evidence to the contrary. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for bilateral hand, bilateral elbow, and bilateral knee disabilities and sinusitis. 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 helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claims must be denied. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss. The Veteran was afforded a VA hearing loss examination in August 2016, but the Board observes the examiner's findings and rationale are internally inconsistent. For instance, for the right ear, the examiner indicated that hearing loss existed prior to service and found that the pre-existing hearing loss was aggravated beyond normal progression in military service. However, in the rationale, the examiner stated, "There was not a STS [significant threshold shift] during service." See Hearing Loss and Tinnitus DBQ dated August 2016. As to the etiology, the examiner opined that hearing loss was less likely as not caused by or a result of an event in military service. A similar rationale was provided that, "there was not a STS during service, there is no evidence of hearing injury." Id. The Board notes, however, that the Court of Appeals for Veterans Claims held in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), that normal hearing at separation from service does not by itself preclude an award of service connection. Additionally, development is needed to adequately address service connection by aggravation. Here, the specific standard for aggravation of a pre-existing condition as discussed under 38 C.F.R. § 3.306 was not properly addressed by the examiner. Given the holding in Hensley and inadequate opinion, the Board concludes that another opinion should be obtained in consideration of the foregoing. 3. Entitlement to service connection for allergic rhinitis. The Veteran was afforded a VA sinus/rhinitis examination in July 2016, where the examiner indicated a clinical diagnosis of allergic rhinitis, but no etiological medical opinion was provided for service connection. The examiner indicated the service treatment records are silent for ENT [ear nose throat] condition during military service. In the remarks, the examiner provided a Gulf War statement that the "veteran's chronic rhinitis is an acute response to allergen, that develops where ever the veteran lives, and is not known to be causally related to environmental exposures incurred during service in Southwest Asia." See Sinus/Rhinitis Conditions DBQ dated July 2016. The above Gulf War statement is inadequate as a medical opinion as it does not address direct service connection. Further, at his hearing, the Veteran described that as head of the 3M department, he performed "all the maintenance of all the safety equipment", changed "air conditioner filters that looked like pieces of carpet, shake them off, and put them right back in", and was constantly "breathing unfiltered, recirculated air." See Hearing Testimony at 5. Given the foregoing, the Board finds that remand is warranted to afford the Veteran a new VA examination and to obtain an etiological opinion that sufficiently addresses the Veteran's contentions, reported history and chronicity of symptomatology. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate VA medical professional to determine the nature and etiology of the Veteran's bilateral hearing loss. The Veteran's electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner must provide an addendum opinion on the following: (a) Is there clear and unmistakable evidence that the Veteran's hearing loss pre-existed his active duty service? (b) If so, is there clear and unmistakable evidence (i.e., undebatable) that the Veteran's preexisting hearing loss was not aggravated, permanently worsened beyond the natural progress of the disability during his service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease). (c) Is it at least as likely as not (a 50 percent or greater probability) that the diagnosed bilateral hearing loss disability is related to conceded noise exposure (acoustic trauma) in service or was incurred within a year of service? The examiner should be aware that normal hearing at discharge does not necessarily preclude service connection. The provided examination opinion should reflect consideration of the medical and lay evidence of record setting forth a complete rationale for all findings and conclusions. 2. Schedule the Veteran for a VA examination from a qualified medical professional to determine the nature and etiology of the Veteran's allergic rhinitis. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. The examiner should provide an opinion on whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's allergic rhinitis began during active service or is causally related to service? In rendering the opinion, the examiner is asked to consider medical records and lay evidence of record. A complete rationale for all opinions is requested. (Continued on the next page) 3. After completing the above actions and any other development deemed necessary, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.