Citation Nr: A25041267 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210930-188404 DATE: May 6, 2025 ORDER Entitlement to service connection for a right knee condition is granted. Entitlement to service connection for a right shoulder condition is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's right knee condition is due to his service-connected degenerative disc disease, with IVDS, thoracolumbar spine (back). 2. The Veteran's right shoulder condition is due to his service-connected back. 3. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to service. 4. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition, as secondary to the Veteran's service-connected back, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a right shoulder condition, as secondary to the Veteran's service-connected back, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinnitus 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 from June 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) from a March 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of issues most recently addressed in March 2020, April 15, 2020, and April 16, 2020, rating decisions. In March 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received, and denied the claims based on the evidence of record at the time of that decision. In the September 30, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the March 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that, in the attorney brief attached to the September 2021 VA Form 10182, the Veteran's attorney refers to a possible Privacy Act request, but the specific nature and date of that request is unclear especially given the fact that VA sent the attorney the Veteran's complete file a few days before this brief was submitted. In any event, even if there remain any outstanding Privacy Act requests, as this Board decision issues a full grant of all issues, the Veteran is not prejudiced in the Board proceeding. The Board also notes that the attorney listed additional, older rating decisions in the first paragraph of the September 2021 attorney brief. However, as those are older than one year, they are not timely and not on appeal. 1. Entitlement to service connection for a right knee condition 2. Entitlement to service connection for a right shoulder condition The Veteran contends that he is entitled to service connection for a right knee condition and for a right shoulder condition. See September 2021 VA Form 10182. The Board finds that there is sufficient evidence to grant both claims secondary to the Veteran's service-connected back. Service connection on a secondary basis requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability either (a) caused, or (b) aggravated, the nonservice-connected disability. 38 C.F.R. § 3.310; Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). Initially, the Board notes that the March 2021 rating decision said that there was no new and relevant evidence for the right knee and right shoulder claims. However, the AOJ then proceeded to adjudicate the claims; therefore, the Board finds that to be an indication of implied findings of new and relevant evidence. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c) A variety of documents in the Veteran's file note a history of various right knee and right shoulder diagnoses since service. This includes a November 2017 VA treatment record that lists several right knee diagnoses and a December 2017 VA treatment record that notes right knee arthritis associated with medial meniscal tear. This also includes an August 2017 VA treatment record that notes right shoulder osteoarthritis and tendinosis, a December 2017 VA treatment record that notes a right shoulder rotator cuff tear, a June 2020 VA treatment note indicating right shoulder impingement syndrome, and a November 2020 private treatment record noting right shoulder tendinosis. The Veteran is service connected for his back. Therefore, the only remaining questions are nexuses. In April 2020, the Veteran submitted a March 2020 private opinion wherein the private examiner linked the Veteran's right shoulder and right knee issues to his service-connected back. The private examiner found that it was reasonable that the Veteran's shoulder and knee problems, which have been chronic and aggravated over time, have been associated with multiple falls secondary to his instability from his back problems. This examiner reiterated this opinion in an August 2021 medical opinion, which the Veteran submitted with his September 2021 VA Form 10182. The Board finds the private examiner's opinions to be adequate in that the examiner relied upon the examiner's own expertise, knowledge, and training. Further, the examiner considered lay evidence and the medical history of the Veteran. While the opinions could be a little clearer and a little more detailed, in giving the Veteran the benefit of the doubt, the Board finds them adequate. The Board notes that the private examiner's opinions are supported by the Veteran's explanations of how his back issues have caused him to fall and how that affects his right knee and right shoulder. See December 2019 VA Form 21-526EZ. The Board also notes that a March 2020 VA treatment record connects the Veteran's right knee to his back issues. Therefore, after resolving any reasonable doubt in favor of the Veteran, the Board finds that direct service connection for a right knee condition and for a right shoulder condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for bilateral hearing loss 4. Entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus. See September 2021 VA Form 10182. 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 (Fed. Cir. 2004). Initially, the Board notes that the March 2021 rating decision said that there was no new and relevant evidence for the bilateral hearing loss and tinnitus claims. However, the AOJ then proceeded to adjudicate the claims; therefore, the Board finds that to be an indication of implied findings of new and relevant evidence. The March 2021 rating decision also made a finding of a tinnitus diagnosis. The March 2020 rating decision made a finding of hazardous noise during service and hearing loss for VA purposes. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c) As the first two elements of service connection are met for hearing loss and tinnitus, the only remaining questions are nexuses. While there are negative VA opinions against the claims, the Board finds them inadequate for several reasons to include not considering the Veteran's statements about onset. However, a lack of an adequate opinion is not fatal to the Veteran's claims. Service connection may be granted for chronic disabilities, such as organic diseases of the nervous system, to include hearing loss and tinnitus, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). For the following reasons, the Board finds that the Veteran has established service connection for bilateral hearing loss and tinnitus through a showing of continuity of symptomatology since service. According to the Veteran, he has had hearing loss and tinnitus symptoms since service. In a February 2020 VA Form 20-0995, the Veteran said that, for two years in service, the noise from B-52 bombers affected his hearing. This implies the Veteran had hearing issues in service. The March 2020 VA examination report notes that the Veteran has had both tinnitus and hearing loss symptoms "since active duty" and specifically notes that he has had tinnitus since exposure to B-52 engines. In a March 2021 Statement in Support of Claim (uploaded as a "Buddy/Lay Statement"), the Veteran said that, during service, he worked in a building directly on the flight line. The Veteran also said that, as he was getting ready to leave service, he ignored the warning of ringing in his ears and not hearing people speaking to him. Id. The Veteran is competent and capable of relaying tinnitus and hearing symptoms that he experienced in service. Further, in the March 2020 VA examination report, the examiner said that the Veteran's tinnitus is at least as likely as not a symptom associated with his hearing loss. As the Board has determined in the herein decision that the Veteran should be service connected for hearing loss, this VA opinion is probative for the tinnitus claim. The Board notes that, while some hearing loss was noted during the Veteran's January 1973 entrance examination, his hearing loss did not rise to the level of a disability for VA purposes in accordance with 38 C.F.R. § 3.385. Further, the PULHES profile in that report reflects a designation of "1" under "H," which indicates that the Veteran was not found to have a hearing defect. Therefore, the Veteran was presumed sound upon entrance. Pursuant to the above discussion, the Board will resolve reasonable doubt and award service connection for hearing loss and tinnitus. The Board considers as highly probative the Veteran's competent and credible history of continuity of symptomatology of having had hearing loss and tinnitus symptoms since service. Therefore, after resolving any reasonable doubt in favor of the Veteran, the Board finds that direct service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Veljic, Erica A. 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.