Citation Nr: 22013418 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-13 733 DATE: March 9, 2022 ORDER Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. A compensable disability rating for service-connected bilateral hearing loss is remanded. An initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability is related to active military service. 2. The Veteran's left knee disability is related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability are 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 in the Unites States Army from March 1985 until his honorable discharge in March 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The record remained open for 60 days following the hearing, and the Veteran did submit additional evidence. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, ___ F.4th ___, 2021 U.S. App. LEXIS 37307, at *11; 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis The Board addresses the Veteran's claims for service connection for right knee and left knee disabilities together as their respective factual and legal analyses are substantially similar. 1. Service connection for a right knee disability 2. Service connection for a left knee disability First element: A current disability According to July 2017 VA medical imaging reports and an April 2021 VA medical record, the Veteran has been diagnosed with osteoarthrosis in his right knee and left knee. The Board finds this evidence credible and probative. Therefore, the first element is satisfied with respect to each claim. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran testified that during his active military service he had an onset of bilateral knee pain. He attributed his bilateral knee pain to repetitive physical training, which included running and walking with forty-pound backpacks. He described one instance where he fell on his right knee in service, which was documented in his in-service medical records. He testified that he chose not to complain about his bilateral knee pain because he did not want to be labeled as a weak individual and did not want added attention. He chose to work through his pain rather than receive treatment at every instance. The Board finds the Veteran's testimony credible as it is consistent with statements he made to VA in prior correspondence and to medical professionals who have treated his medical conditions. This evidence is also probative. Therefore, the Board finds the second element is satisfied for each knee disability. Third element: A causal link The Veteran has only received one VA examination addressing his bilateral knee disability. That examination occurred in February 2018. The examiner only diagnosed the Veteran with right knee pain causing functional loss due to a meniscectomy that occurred in 2012. There was no discussion of whether the Veteran had bilateral knee osteoarthrosis. The examiner indicated that imaging studies were not conducted, and none were available for review. This statement is contrary to the evidence of record, which shows that the Veteran underwent X-ray imaging of his knees in 2017, and that a VA doctor diagnosed him with bilateral knee osteoarthrosis. In August 2018, the Veteran provided a private medical opinion addressing the etiology of his bilateral knee disabilities, authored by his treating physician, Dr. W. Dr. W. opined that the Veteran's bilateral knee degenerative changes and associated pain were likely due to his military service. Dr. W. based his opinion on the length of time he has been treating the Veteran, since 2012, and his personal knowledge of the Veteran's military history as reported by the Veteran. Although Dr. W. offered no supporting rationale to support his opinion, the Board finds the opinion is still credible and probative. When the Board views the Veteran's statements about the onset of his bilateral knee pain in conjunction with his medical history and Dr. W.'s opinion, there is sufficient evidence to find a causal link between the Veteran's bilateral knee osteoarthrosis and his military service. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (holding that lay evidence of continuing symptoms of a disability following service can be sufficient to demonstrate a medical nexus between a current disability and an in-service event or injury, even where there is no medical opinion establishing that nexus); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations[.]"). Therefore, the Board finds the third element is satisfied with respect to each claim for service connection. Accordingly, service connection for a right knee disability and left knee disability is granted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability is remanded. 2. A compensable disability rating for service-connected bilateral hearing loss is remanded. 3. An initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder is remanded. Remand is required for the remaining claims for multiple reasons. First, following the October 2021 Board hearing, the Veteran submitted Social Security Administration (SSA) disability records. He was awarded SSA disability benefits based in part on some of his service-connected disabilities. With all claims for benefits, VA has the duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary [of VA]." 38 U.S.C. § 5103A(a)(1); see also 38 C.F.R. § 3.159(c) (implementing regulation). Part of this duty includes obtaining "relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(c)(1)(C). Pertinent to this appeal, VA's implementing regulation specifically lists SSA records among the Federal agency records that VA is obligated to attempt to obtain. 38 C.F.R. § 3.159(c)(2). Therefore, before adjudication on the remaining claims can occur, VA must attempt to obtain the outstanding relevant SSA records. Second, the Veteran credibly testified during his board hearing that since his most recent VA examinations assessing his bilateral hearing loss (in February 2018) and posttraumatic stress disorder (in June 2018), he has experienced worsening symptoms associated with each disability. Moody v. Wilkie, 30 Vet. App. 329, 341 (2018) ("Generally speaking, VA must provide a new examination when the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition."). Therefore, remand is required to obtain new VA examinations addressing the severity of these service-connected disabilities. Third, following his Board hearing, the Veteran provided documents from the State of Oregon in relation to a workers' compensation claim related to his right knee. As these documents appear relevant to determining the degree of disability of his right knee, they are relevant documents that VA must attempt to obtain under its duty to assist. Finally, the claim for entitlement to a total disability rating (TDIU) based on individual unemployability is inextricably intertwined with all of the claims on appeal. Resolution of those claims will necessarily impact any decision on TDIU benefits. Therefore, the claim for TDIU benefits must be remanded as well. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Request and obtain from the Social Security Administration (SSA) all documents pertaining to any applications by the Veteran for SSA disability benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering any decision or determination. Any negative search result should be noted in the record and communicated to the Veteran. 3. Ask the Veteran to provide all releases necessary for VA to secure copies of all records pertaining to him from the State of Oregon Workers' Compensation agency. If any records requested are unavailable, the reason must be explained for the record. 4. Obtain a new VA examination from an appropriately qualified clinician as to the Veteran's bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. 5. Obtain a new VA examination from an appropriately qualified clinician as to the Veteran's posttraumatic stress disorder. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. 6. Provide the Veteran with a notice regarding what is necessary to substantiate a claim for entitlement to a total disability rating based on individual unemployability (TDIU) and request that he complete and return a formal application for entitlement to TDIU and an authorization to obtain information from his previous employers. If the Veteran returns any form which is incomplete or contains insufficient information, he must be informed of such and be given the opportunity to provide a complete one. The Regional Office should take any additional, reasonable, and necessary developmental action. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.