Citation Nr: 22010542 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 17-34 406 DATE: February 24, 2022 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include word finding difficulty and neurocognitive disorder, is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a left knee disability, diagnosed as bilateral osteoarthritis, is granted. Entitlement to service connection for an acquired auditory processing disorder is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates his residuals of a TBI, to include word finding difficulty and neurocognitive disorder, is related to his active service. 2. A hearing loss disability not been shown in either the right ear or left ear during the pendency of the Veteran's appeal. 3. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates his left knee disability, diagnosed as osteoarthritis, was incurred during the Veteran's active service. 4. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates his acquired auditory processing disorder is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of TBI, to include word finding difficulty and neurocognitive disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for a left knee disability, diagnosed as osteoarthritis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for an acquired auditory processing disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1992 to December 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board in August 2021. A transcript of that hearing has been associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Residuals of a TBI, to include Word Finding Difficulty and Neurocognitive Disorder The Veteran asserts that he developed residuals from a head injury in service, including neurocognitive problems. At an August 2021 virtual hearing, the Veteran testified that he sustained a head injury in service in 1997 and had abnormal electroencephalograms (EEGs) in service in 2013, just prior to his separation from active service. In addition, he testified that he has been diagnosed with a current disability that was related to his active service by private treatment providers. The Board concludes that the Veteran has current residuals of TBI, diagnosed as word finding difficulty and neurocognitive disorder, that is related to a head injury in-service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Private treatment records demonstrate the Veteran has a current diagnosis of word finding difficulty and neurocognitive disorder. Service treatment records (STRs) reflect the Veteran was treated for a head injury. Thus, the question becomes whether the current disability is related to service. STRs reflect the Veteran was treated for a head injury with laceration in February 1997. An August 2013 report of medical assessment at retirement demonstrated an abnormal EEG in the left side brain, which was found to be possibly related to prior head trauma 15 years ago. STRs in December 2013 and post service treatment records at a military medical facility through March 2014 reflect the Veteran was treated for brain exercises at a TBI clinic. The probative evidence of record demonstrates a nexus between the Veteran's in-service head injury and his current residuals of TBI. The Veteran was diagnosed with difficulty with speech, questionably related to his past head injury in a July 2017 private treatment report and he was referred for a neuropsychology evaluation. In a July 2018 evaluation, a private neuropsychologist found that the Veteran had attention deficits and processing delays likely which accounted for his relatively weak memory test scores, significantly lower than his intellectual ability levels. He then found that, in the absence of longstanding attention deficit disorder, one wondered about the effects of a possible concussive brain injury sustained in 1997, primarily of the left hemisphere focus which may have contributed to weaknesses in verbal processing and which may be further exacerbated by the normal effects of aging. He diagnosed the Veteran with neurocognitive disorder and rule out neurocognitive disorder due to TBI. In an August 2018 private treatment report, the Veteran was diagnosed with a word finding difficulty and the private physician found that the MRI did not show any significant ischemia, particularly in comparison to the previous study. She found that this, along with the recent neuropsychological testing, EEGs, and previous diagnosis of auditory processing disorder was consistent with TBI, which was more likely than not connected to the Veteran's military service. Accordingly, the Board finds the probative evidence of record to at least be in equipoise as to whether the Veteran's current residuals of TBI, diagnosed as word finding difficulty and neurocognitive disorder, is related to active service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for residuals of a TBI, diagnosed as word finding difficulty and neurocognitive disorder, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Bilateral Hearing Loss 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 Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts he has a hearing loss disability. At his August 2021 virtual hearing, he testified that he had hearing problems and understanding what other people said; however, he noted the medical specialists he saw attributed his hearing problems to his auditory processing disorder and neurological issues. During the pendency of the appeal, there have been no auditory threshold in any of the relevant frequencies at 40 decibels or greater, there were not three frequencies at greater than 26 decibels, and all speech recognition scores were above 94 percent, thereby not meeting the criteria to qualify as a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385. The results of the audiometric testing in the December 2013 VA examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 5 5 10 5 5 Speech discrimination scores using the MD CNC word recognition list revealed findings of 98 percent in both ears. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Here, the VA hearing examination findings are not sufficient to establish a current hearing loss disability during the period on appeal for VA purposes. 38 C.F.R. § 3.385. During the period on appeal, the evidence of record demonstrated the Veteran's bilateral ears' audiometric findings to be within normal limits. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosis of a bilateral hearing loss disability under 38 C.F.R. § 3.385, the Board must deny the Veteran's claim. The Board concludes that, as the evidence persuasively favors against service connection for bilateral hearing loss, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. Left Knee Disability, Diagnosed as Osteoarthritis The Veteran asserts that his left knee disability began during his active service and has continued since that time. At an August 2021 virtual hearing, the Veteran testified that a private physician provided an opinion relating this disability to the Veteran's active service. The Board concludes that the Veteran has a current left knee disability that was incurred during the Veteran's active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). STRs demonstrate that bilateral knee pain was noted in the August 2013 report of medical assessment at retirement. Post service treatment records demonstrate the Veteran was diagnosed with left knee osteoarthritis in July 2016 and September 2017 private treatment reports. Thus, the question becomes whether the current disability is related to service. The probative evidence of record demonstrates a nexus between the Veteran's in-service left knee problems and his current left knee disability. The Veteran has documented complaints of knee pain which continued since his time of service. In fact, he filed his claim for service connection for a knee disability prior to his discharge from service and has continued to report knee problems since that time. The Veteran is competent to report his left knee pain began in service and continued since his active service, as these are lay observable symptoms, and these reports are credible as they are consistent with the overall evidence of record. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). In a September 2017 letter, the Veteran's private treatment provider since his retirement from service opined that the Veteran's bilateral knee pain, diagnosed as osteoarthritis, was at least as likely as not related to his nearly 22 years of military service. She based her opinion on her own examinations, the Veteran's reported history and a review of his records. Accordingly, the Board finds the probative evidence of record to be at least be in equipoise as to whether the Veteran's current left knee disability, diagnosed as osteoarthritis, was incurred during active service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a left knee disability, diagnosed as osteoarthritis, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Acquired Auditory Processing Disorder The Veteran asserts that he developed residuals from a head injury in service, including auditory processing disorder, which he originally attributed to hearing difficulty and noise exposure in service. At an August 2021 virtual hearing, the Veteran testified that he sustained a head injury in service in 1997 and had abnormal EEGs in service in 2013, just prior to his separation from active service. In addition, he testified that he has been diagnosed with a current auditory processing disorder that was related to his active service by a private treatment provider. The Board concludes that the Veteran has a current disability, diagnosed as auditory processing disorder, that is separate and distinct from his word difficulty and neurocognitive disorder and is related to a head injury in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Private treatment records demonstrate the Veteran has a current diagnosis of acquired auditory processing disorder, based on symptoms separate from his diagnosed word finding difficulty and neurocognitive disorder. STRs reflect the Veteran was treated for a head injury. Thus, the question becomes whether the current disability is related to service. As noted above, STRs reflect the Veteran was treated for a head injury with laceration in February 1997. An August 2013 STR noted the Veteran had an abnormal EEG in the left side brain and was diagnosed with acquired auditory processing disorder. The probative evidence of record demonstrates a nexus between the Veteran's in-service head injury and his current acquired auditory processing disorder, aside from other service-connected residuals of TBI. In a July 2018 report, a private audiologist who treated the Veteran since March 2013 provided an opinion regarding the etiology of his auditory processing disorder. She noted that he had difficulty understanding speech in crowds and in the presence of background noise and that it had been gradually worsening for several years. She opined that, based on her personal evaluation of this Veteran, which includes being his treatment provider since his initial diagnosis of auditory processing disorder in 2013, and her knowledge of auditory processing disorders, it was at least as likely as not that the head injury and/or nose exposure during his 22 year military career were contributing factors to the Veteran's development of an auditory processing disorder. Accordingly, the Board finds the probative evidence of record to be at least be in equipoise as to whether the Veteran's acquired auditory processing disorder is related to active service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for acquired auditory processing disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Back Disability In light of the treatment for the Veteran's back and diagnosis of lumbago in service and the Veteran's continued complaints of back pain since that time, an adequate VA examination and medical opinion is required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current back disability which originated during active service or was otherwise caused by or related to active service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the appellant adequately identifies. 2. The Veteran should be afforded a VA examination to determine the current nature and etiology of his back disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's reported history carefully, including his testimony at the August 2021 hearing of and his continued reports of back pain since his active service; AND (2) the service treatment records (STRs) demonstrating treatment for the back disability and diagnosis of lumbago. PLEASE ALSO NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Whether the Veteran has a currently diagnosed low back disability; (b) If a diagnosis of a back disability was not provided, please discuss the Veteran's complaints of back pain in service, diagnosis of lumbago in service and complaints of back pain since active service. (c) Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed back extremity had its onset during the Veteran's period of active service; or was caused by any incident or event that occurred during such period. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.