Citation Nr: 21031107 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-05 179 DATE: May 20, 2021 ORDER Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected residuals of left knee patellar dislocation (hereinafter "left knee disability"), is denied. Entitlement to service connection for bilateral hearing loss (BHL) is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety with depression, to include as secondary to service-connected left patellar dislocation disability, is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee patellar dislocation disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a respiratory disability. 2. The Veteran does not have a left hip disability. 3. The Veteran does not have bilateral hearing loss disability. 4. Tinnitus did not manifest in service and not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for a left hip disorder have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2020). 3. The criteria for entitlement to service connection for BHL have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). 4. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from June 1992 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) from an appeal of a June 2015 rating decision a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The claims file contains a copy of the hearing transcript. Service Connection The Veteran contends that a respiratory disorder, a left hip disorder, BHL, and tinnitus were incurred in, aggravated by, or otherwise attributable to, service. Additionally, the Veteran contends that a left hip disorder was proximately caused by, or aggravated beyond its natural progression by, his service-connected left knee disability. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. 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 lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain chronic diseases, including diseases of the nervous system such as bilateral sensorineural hearing loss and arthritis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation.") Evidence and Analysis Respiratory disorder Left hip disorder In a November 1992 service treatment record (STR), the Veteran complained of a sore throat; however, he denied congestion or coughing. In April 1993, the Veteran signed a form that indicated that he had no asbestos exposure. In November 1993, a clinician noted that the Veteran had a viral syndrome with lungs clear to auscultation (CTA), In January 1994, a clinician indicated that the Veteran had a viral syndromewith chest congestion and a non-productive cough. The Veteran's lungs were CTA. On February 2, 1994, the Veteran complained of shortness of breath (SOB). A clinician indicated that the Veteran did not have a history of asthma and the Veteran's lungs were CTA, adding the current illness was resolving. On February 4, 1994, the clinician reported that the Veteran was feeling better. In a February 1994 dental assessment, the Veteran reported that he had had bronchitis; however, he denied having had emphysema, tuberculosis, or asthma. While the STRs address the Veteran's left patella dislocation, complaints of left knee pain, and endorsements of low back pain, STRs do not disclose complaints, treatment, or any assessment which pertains to the Veteran's left hip. In a September 1994 VA joints examination, a clinician indicated that the Veteran had sustained an acute dislocation of his left patella in service. The Veteran had a normal alternating gait. This clinician did not indicate that the Veteran had any associated left hip disorder. In a May 1997 VA joints examination, a clinician noted that x-ray imaging of the left knee was essentially normal. Also, this clinician did not indicate that the Veteran had any associated left hip disorder. In May 2015, the Veteran underwent a VA respiratory conditions examination. A clinician reviewed the claims file; considered the Veteran's accounts of his medical history; and conducted an appropriate evaluation (hereinafter "VA exam protocols"). This clinician indicated that the Veteran did not have a current respiratory condition and that the evidence of record fails to disclose that the Veteran ever had a respiratory condition. The Veteran reported that he occasionally experienced coughing (with and without expectoration); however, the Veteran reported that he had not experienced SOB, fever, or night sweats. The Veteran noted that he smoked a half pack of cigarettes for the past 5-6 years. As there was no clinical evidence of a current respiratory condition, the clinician indicated that there could be no functional impact on the Veteran's ability to work. In a May 2015 VA treatment record, a VA pulmonary clinician indicated that the Veteran tolerated two puffs of albuterol testing well. Clinical evaluation showed that the Veteran's lungs were slightly hyperinflatedwithout any acute pathology. The Veteran also underwent a VA hip and thigh conditions examination in May 2015. The clinician indicated that the clinical evaluation of the Veteran's was totally normal. There was no evidence of a current left hip disorder. The Veteran told the clinician that his bilateral hip and buttocks pain started "years ago". X-ray imaging did not reveal either a fracture or significant degenerative change in either hip. The Veteran endorsed that this pain was due to his left knee disability. As there was no clinical evidence of a current left hip disability, the clinician indicated that there could be no functional impact on the Veteran's ability to work. The clinician indicated that the Veteran's contended left hip disorder was less likely than not proximately due to or the result of the Veteran's left knee disability. As a rationale for this negative nexus opinion as to secondary service connection, the clinician noted that the Veteran commands a normal gait, normal knee mechanics andmost notablya clinical evaluation of the Veteran's bilateral hips were wholly normal. A review of the Veteran's VA treatment records shows multiple clinical notations concerning the Veteran's lungs which were CTA. A clinician reported no SOB in July 2011. In 2015, clinicians noted that the Veteran endorsed left hip pain; however, the physiological basis of this pain remained uncertain. At the February 2021 Board hearing, the Veteran reported that his left hip pain impacts his ability to work as an Uber driver. The Veteran testified that left hip symptoms onset after his left knee injury in service. As to a respiratory disorder, the Veteran testified that a clinician at a facility where he was treated diagnosed some type of respiratory disorder and he was prescribed albuterol. A review of VA progress notes discloses that the Veteran complained of left hip pain in 2020. From 2017 to 2020, VA clinicians indicated that the Veteran's lungs were CTA. These notes also show that computed tomography (CT) of the Veteran's bilateral hips showed no abnormalities in September 2020 Bilateral hearing loss Tinnitus The Veteran's enlistment audiogram disclosed pure tone thresholds, in decibels as: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 5 0 LEFT 10 0 10 15 5 A hearing conservation audiogram of June 1992 disclosed pure tone thresholds, in decibels as: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 -5 -5 LEFT 15 5 15 10 5 A hearing conservation audiogram of April 1993 disclosed pure tone thresholds, in decibels as: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 -5 -10 LEFT 20 5 15 10 10 When comparing these two audiograms, a clinician indicated that there had been no significant threshold shifts. In April 1993, the Veteran signed an acknowledgment of receipt of hearing protective devices of a "triple flange" variety. In May 2015, the Veteran underwent a VA audiological examination. The audiologist followed VA exam protocols. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 0 5 LEFT 20 10 20 10 15 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The audiologist reported that the Veteran's bilateral sensorineural hearing was normal. The audiologist indicated that bilaterally there was neither mixed hearing loss; sensorineural hearing loss at any tested frequency range of Hz; nor significant changes in hearing thresholds in service. The audiologist indicated that the Veteran did not endorse that claimed BHL functionally impacts his ordinary conditions of life, including her ability to work. See Martinak, 21 Vet. App. 447. The audiologist reported that the Veteran endorsed occasional ringing in the ears, more prominent in the left ear. The Veteran estimated that this ringing began 2-5 years earlier; the ringing lasts for approximately 30 seconds, maybe once a week and has not been on-going. The audiologist did not comment on any functional impact of tinnitus. The audiologist indicated that BHL was not at least as likely as not caused by or the result of an event in service. As a rationale for this negative nexus opinion, the audiologist opined that since the Veteran's induction audiogram and the current audiogram fail to disclose any significant change in bilateral hearing acuity, there was no BHL attributable to service. The audiologist also indicated that tinnitus was less likely than not caused by or the result of military noise exposure. As a rationale, the audiologist opined that the Veteran does not have BHL related to military noise exposure, thus tinnitus cannot be related to military noise exposure. At the February 2021 Board hearing, the Veteran stated that he experienced ringing in his ears when he was assigned to a ship, including time in the engine room. The Veteran testified that his only hearing protective consisted of two small foam inserts. The Veteran also reported that he sought treatment for tinnitus in service because it caused headaches. The Veteran believes that a respiratory disorder, a left hip disorder, BHL, and tinnitus were incurred in, aggravated by, or otherwise attributable to, active duty service. The Veteran is competent to report discernable symptoms and reports that he has heard. The Board has considered the Veteran lay statements and hearing testimony. 38 C.F.R. § 3.159(a)(2). Nevertheless, as a lay person, the Veteran does not possess the specialized knowledge in audiology and medicine to render either a complex audiological or medical opinion as to aggravation or etiology. 38 C.F.R. § 3.159(a)(1). Consequently, this lay evidence does constitute competent clinical evidence. The Board acknowledges that the Veteran reported left hip pain and described difficulty exiting a vehicle. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). The Board places greater weight on the assessment of the examiner in 2015 who did not observe pain on motion or on weight bearing and did not find any limitation in walking or standing. In the absence of proof of a present disability there can be no valid claim. See Brammer, supra. The pertinent medical evidence is summarized above. The competent May 2015 VA clinicians and audiologist, in whom the Board places substantial probative weight, have not provided current diagnoses of a respiratory disorder, a left hip disorder, or BHL. Moreover, the evidence does not support a finding that the Veteran suffers from any symptomatology associated with this claimed disability that results in identified functional impairment. C.f., Saunders v. Wilkie, 866 F. 3d 1356 (2018). Thus, the service connection is not possible on a direct, a secondary, or a presumptive basis (arthritis or BHL). See Shedden, 381 F. 3d 1163; see also 38 C.F.R. §§ 3.307, 3.309, 3.310. While the evidence of record shows that the Veteran has current intermittent tinnitus, the weight of evidence is against finding an in-service incurrence or predicate. The Board notes that to the extent that tinnitus is capable of lay observation, the Veteran is competent to report her symptoms. Charles, 16 Vet. App. 370. A review of the evidence fails to disclose that the Veteran reported tinnitus during service or upon separation from service. The Veteran's earliest complaint of tinnitus dates from the May 2015 VA audiological examination. Without an in-service incurrence or predicate, the possibility of establishing service connection for tinnitus is not possible. See Shedden, 381 F. 3d 1163. Consequently, the preponderance of evidence is against the Veteran's four service connection claims. As such, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159. Acquired psychiatric disorder At the February 2021 Board hearing, the Veteran testified that his psychological symptoms, to include anxiety and depression, were associated with the "transitional nature of getting injured" and the uncertainty and strife that this engendered concerning the Veteran's naval career. Service records show that the Veteran was disenrolled from submarine school after an injury, placed on limited duty, and then assigned to a surface ship. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. As the Veteran has presented competent lay evidence which indicates that an acquired psychiatric "may be associated" with his established in-service left knee injury, the finds that the requirements of the third prong of McLendon have been met. Left knee disability At the Board hearing, the Veteran testified that his left knee disability has worsened in severity and that he experiences far more instability that impacts his ability to work as an Uber driver. A review of the record shows that the Veteran last underwent a VA left knee examination in May 2015almost 6 years ago. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination triggers only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Here, the Veteran's testimony concerning increased instability and increased functional impact on his ability to work indicate a degree of worsening that triggers the need for a VA examination to assess the current severity of the Veteran's left knee disability. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are any outstanding private records related to the Veteran's acquired psychiatric disorder and/or left knee disability. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. For any private records, should the Veteran or his representative provide an executed VA Form 21-2142 and an executed VA Form 21-4142a, the RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the such unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes, and examination reports. All efforts should be undertaken until all outstanding VA records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C). 3. Arrange for a VA mental health examination and a VA knee examination with appropriate clinicians. The clinicians must review the claims file and indicate such a review in the body of their respective examination reports. Upon completion of this review, the clinician must: For the acquired psychiatric disorder, to include anxiety and depression (mental health) examination, a. Whether it is at least as likely as not (50 percent or more) that the Veteran's acquired psychiatric was proximately caused by, or aggravated beyond its natural progression by, service-connected left disability AND b. Whether it is at least as likely as not that the Veteran's acquired psychiatric was incurred in, aggravated by, or attributable to, any incidence of active duty service? For the left knee examination, the clinician should perform all necessary testing to ascertain the current severity of the Veteran's left knee disability. Assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. If possible, estimate range of motion, to include after repetitive use and during flare ups in terms of degrees based upon observations in the examination and the Veteran's lay reports of symptoms. The clinician must also measure the Veteran's contralateral joint (right knee) in active and passive range of motion. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must 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), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). The clinician should keep in mind that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. Should the clinician reject the Veteran's reports, she/he must provide an explanation for such rejection. The clinician must provide complete, clearly-stated rationales for the conclusions reached. The clinician should include explanations that consider the record and pertinent medical principles and the clinician's rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.