judge_norm: JENNIFER WHITE

condition: psychiatric

text:
��Citation Nr: 23023000

Decision Date: 04/19/23	Archive Date: 04/19/23

DOCKET NO. 19-17 480

ORDER

Entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran's service-connected depressive disorder is granted.

FINDING OF FACT

Resolving reasonable doubt, the Veteran's obstructive sleep apnea is aggravated beyond its natural progression by the Veteran's service connected depressive disorder.

CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran's service connected depressive disorder are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1968 to February 1988.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran's claims for entitlement to service connection for an acquired psychiatric disorder including depression and anxiety and entitlement to service connection for obstructive sleep apnea were remanded in an April 2020 Board decision.  Following the Board's remand, a July 2020 rating decision granted the Veteran's claim for entitlement to service connection for depressive disorder. This constitutes a full grant of the benefit sought.  The Veteran subsequently filed a request for higher level review for an earlier effective date in July 2021.  However, to date the Veteran has not perfected an appeal to the Board with respect to the claim for entitlement to an earlier effective date.  Accordingly, that issue is not before the Board.

Legal Criteria

Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated (increased in severity) the nonservice-connected disability for which service connection is sought.  38 C.F.R. � 3.310.

1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran's service connected depressive disorder.

The Veteran contends that he is entitled to service connection for obstructive sleep apnea.

Evidence of record including VA examinations, establish that the Veteran has a current diagnosis of obstructive sleep apnea.

In October 2017, the Veteran underwent a private examination.  The examiner noted a current disability of obstructive sleep apnea, diagnosed in April 2014. After a review of the Veteran's claims file, medical records and interviewing the Veteran, the examiner concluded that the Veteran's obstructive sleep apnea has been permanently aggravated by his psychiatric symptoms. As supporting rationale, the examiner noted that research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea.  A recent study found that subjects with depression compared with non depressed have a higher prevalence of a sleep apnea diagnosis.  Another study found that with CPAP treatment, both OSA an psychiatric symptoms decreased providing further evidence of the co-morbidity of these conditions.

The Board affords probative weight to this opinion as it is based on the examiner's medical knowledge as well as a review of the evidence of record and an interview with the Veteran.  Further, the opinion is supported by adequate rationale.

The Board notes that an April 2020 VA addendum opinion asserts that "in regard to the psychiatric disorder it must be noted that there is no data in the medical literature to support a direct cause and effect relationship between depression and the development of sleep apnea.  It is important to emphasize that articles that find "associations" between depression and pathological conditions must be interpreted with caution - association does not prove a cause effect relationship, and may just represent a coincident finding.

Of note, the Veteran's depressive disorder was not service connected until the July 2020 rating decision, approximately three months after the April 2020 addendum opinion for sleep apnea. Further, this opinion does not affirmatively assert that the Veteran's sleep apnea is not caused by the Veteran's depressive disorder and does not opine as to whether the Veteran's sleep apnea ins aggravated by depressive disorder.  Accordingly, the probative value of this opinion is outweighed by the October 2017 private opinion.

Entitlement to service connection for obstructive sleep apnea, secondary to the Veteran's service connected depressive disorder is granted.

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Wimbish, 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.


series: legacy

judge_norm: THOMAS H O'SHAY

judge_role: Veterans Law Judge

disposition: denied

condition: tinnitus

condition: knee

text:
��Citation Nr: 23024000

Decision Date: 04/26/23	Archive Date: 04/26/23

DOCKET NO. 18-25 675A

DATE: April 26, 2023

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for a right knee disorder is denied.

Entitlement to service connection for migraine headaches to include as secondary to hearing loss and tinnitus is denied.

Entitlement to service connection, to include on a secondary basis, for unspecified depressive disorder is denied.

FINDINGS OF FACT

1. The Veteran's currently diagnosed hearing loss did not have onset in or within one year of discharge from service and is not otherwise etiologically related to service.

2. The Veteran's diagnosed tinnitus is not etiologically related to service and had onset many years after discharge from service.

3. The Veteran does not have a current right knee disability that had onset in or within one year of discharge from service and is not otherwise etiologically related to service.

4. The Veteran's migraine headaches are not etiologically related to service and are not caused by or aggravated by a service connected disability.

5. The Veteran's unspecified depressive disorder is not etiologically related to service and was not caused or aggravated by a service connected disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.385.

2. The criteria for service connection for tinnitus have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

3. The criteria for service connection for a right knee disorder have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

4. The criteria for service connection for migraine headaches as secondary to hearing loss and tinnitus have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

5. The criteria for service connection for unspecified depressive disorder have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1977 to July 1979.

In March 2023, the Veteran testified at a video teleconference hearing before the undersigned.  A transcript of the hearing is of record.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. � 1131; 38 C.F.R. �� 3.303 (a).  To establish a right to compensation for a present disability, a veteran must show: (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 (Fed. Cir. 2004).

Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

1. Entitlement to service connection for bilateral hearing loss

The Veteran contends that his diagnosed hearing loss is related to noise exposure during service.  Specifically, during the Veteran's Board hearing, he testified that he worked in the motor pool and was exposed to loud generators.

A review of the Veteran's service treatment records shows that there were no complaints or diagnosis of a hearing disorder made during service.  Additionally, the Veteran's entrance and exit examination showed normal hearing.

An October 2015 VA audiology note reflects the Veteran reported bilateral hearing loss with gradual onset since 2012, with the left worse than the right ear.  He also reported ringing in both ears that began in 2012.  Testing showed poor response consistency was obtained for both ears.  The examiner noted the test results were not entered due to possible non-organic hearing loss and are not adequate for adjudication purposes.  The assessment was suspected non-organic hearing loss.

A January 2016 VA hearing loss examination reflects that one or more frequencies could not be tested.  There was some improvement in responses with re-instruction and repeated attempts were made to find more consistent testing.  The examiner stated that no diagnosis could be provided for hearing loss due to inconsistencies in responses.  The examiner stated the examination was not valid for rating purposes.  In the opinion, the examiner stated the audiological evaluation revealed inconsistencies in responses.  The examiner recommended further testing to validate the results.

A March 2018 VA hearing loss examination report showed the right ear hearing loss was sensorineural at 6000 Hz.  The left ear had sensorineural hearing loss.  For the right ear, the examiner opined it was not at least as likely as not hearing loss was caused by or a result of an event in service.  The rationale was that the right ear hearing sensitivity was within normal limits, per VA guidelines and the mild hearing loss at 6000 Hz, only, is less likely as not related to military noise exposure and most likely a result of presbycusis.  The examiner opined it was less likely as not the left ear hearing loss was caused by or a result of an event in service as the hearing loss did not occur until 2012, but the Veteran was discharged from service in 1979, many years earlier.

After reviewing the March 2018 VA hearing loss examination, the RO asked for a reconciliation of conflicting evidence.  The RO stated the Veteran's claim for bilateral hearing loss and tinnitus are related to exposure to hazardous noise, and additionally, the Veteran has total left-sided loss of hearing due to a schwannoma in 2010, about 30 years after service.  The examiner was asked to address whether there is any evidence the schwannoma is related to military service.

In a March 2018 opinion, the examiner stated that the Veteran's records show normal hearing per VA guidelines on entrance and on exit from service.  The examiner noted a December 2016 Head and Neck clinic note that shows a history of severe asymmetric sensorineural hearing loss in the left ear developing over the past 4 years with tinnitus.  At the time imaging was performed to evaluate his asymmetric SNHL and revealed a left vestibular schwannoma.  The examiner stated the Veteran's left ear is nonfunctional and there is no diagnosis of right ear hearing loss as hearing sensitivity in the right ear is within normal limits.  The examiner went on to state the configuration and severity of the unilateral hearing loss is not consistent with acoustic trauma.  The examiner noted that in addition, if there is a diagnosis of schwannoma, that disorder does not occur from acoustic trauma as schwannomas are a type of acoustic neuroma that usually grows slowly causing increasing problems with hearing loss, tinnitus, possible unsteadiness and weakness in the facial nerves.  The examiner continued that there is no evidence in the record that would support the fact that the diagnosed schwannoma was caused by any incident in service.  Lastly, the examiner noted that the Veteran was discharged from service in 1979, but the record dated December 2016 shows that the Veteran reported the hearing loss and tinnitus began about 4 years prior, many years post service.

During the March 2023 Board hearing, the Veteran testified that he was exposed to noise while working in the motor pool.  He stated he could not remember if he was issued hearing protection.  The Veteran stated that hearing loss began during service and continued since service.

Based on a review of the medical and lay evidence, the Board finds that the evidence does not support a finding that the Veteran's diagnosed hearing loss is caused by or a result of military service noise exposure.  According to the medical evidence the Veteran does not have right ear hearing loss for VA purposes, and the left ear hearing loss is attributed to a schwannoma, which the VA examiner stated is not related to acoustic trauma and not related to the Veteran's military service.

The Board acknowledges the Veteran's testimony that his hearing loss began in service and worsened since then; however, that testimony is not consistent with the evidence in the claims file.  When seeking treatment for hearing issues in October 2015 and December 2016, the Veteran reported that his hearing loss began in 2012 and had worsened since then. The Board finds the Veteran's account to lack credibility in light of this.

While the Veteran believes his hearing loss is related to his military service, he is not competent to provide an etiology in this case.  Though the Veteran may be competent to describe the particular symptoms from which he suffers, determining the etiology of hearing loss requires specialized medical education/knowledge or training which the Veteran is not shown to have.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence.

Based on all available medical evidence, the evidence is against a finding the Veteran's hearing loss is related to service.  As the evidence is not in approximate balance but is persuasively against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. � 5107 (b) is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

2. Entitlement to service connection for tinnitus

The Veteran contends that his tinnitus is related to his military service.  Specifically, the Veteran testified during his March 2023 Board hearing that he began to have ringing in his ears during service but didn't remember when it first started.

The STRs are silent for any complaints, treatment, or a diagnosis of tinnitus.

An October 2015 VA audiology note reflects the Veteran reported bilateral hearing loss with gradual onset since 2012, with the left worse than the right ear.  He also reported ringing in both ears that began in 2012.

A January 2016 VA tinnitus examination shows the Veteran reported he "noticed tinnitus in the military, after the 80's".  The examiner opined it was less likely than not tinnitus was caused by or a result of military noise exposure.  The examiner noted there was asymmetry between ears and that the responses were not consistent and recommended further audiological evaluation to confirm the day's results.  Lastly, the examiner stated they could not ascertain an etiology for tinnitus at this time.

A March 2018 VA tinnitus examination shows the Veteran reported tinnitus first occurred in 2012 but was unable to recall details about the onset.  The examiner opined it was less likely than not tinnitus was caused by or a result of military noise exposure.  The rationale was that tinnitus was no present until 2012 but the Veteran was discharged from service in 1979, many years before onset.

Based on a review of the medical and lay evidence, the Board finds that the evidence does not support a finding that the Veteran's diagnosed tinnitus is caused by or a result of military service noise exposure.

The Board acknowledges the Veteran's testimony that his tinnitus began in service and worsened since then; however, that testimony is not consistent with the evidence in the claims file.  When seeking treatment for hearing issues in October 2015 and December 2016, the Veteran reported that his tinnitus began in 2012, shortly after his hearing loss began.  At the January 2016 VA examination, the Veteran stated tinnitus began in service "after the 80's", which would be after his military discharge.  The Veteran also told the March 2018 VA examiner that his tinnitus had onset in 2012. The Board finds this inconsistency to undermine his credibility.

Based on all available medical evidence, the evidence is against a finding the Veteran's tinnitus is related to service.  As the evidence is not in approximate balance but is persuasively against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. � 5107 (b) is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

3. Entitlement to service connection for a right knee disorder

The Veteran contends that he has a right knee disorder that is a result of his military service.  The records show that the Veteran has a diagnosis of osteoarthritis in the right knee.  Specifically, during the March 2023 Board hearing, the Veteran testified that while doing his job as a mechanic, he was often required to be on his knees to change tires, wheel bearings, and brakes.

The STRs are silent for any complaints or treatment for a right knee disorder or pain.  The entrance and exit examinations both show normal evaluations with no knee disorders noted or reported by the Veteran.

VA treatment records show that in September 2015, the Veteran reported having right knee pain for the last 3 to 4 months.  A January 2016 Head and Neck surgery consult reflects the Veteran reported right knee discomfort and a history of left knee replacement.  A July 2016 primary care note reflects that x-rays in November 2015 showed bilateral knee osteoarthritis, with mild osteoarthritis in the right knee.

At the March 2023 Board hearing, the Veteran stated, when pressed, that he had pain in his knee during service and continued to have problems with his right knee after service.  He also stated that he told one of his sergeants about his knee pain and he was told to "man up", so he just sucked it up.  The Veteran also stated that he never got treatment for anything in service because he was always told to "man up".  The Board notes that during his military service, the Veteran was seen for cold symptoms several times, the flu, chest pains, a vision issue, left foot sprain, and a right ankle injury.

The Board acknowledges the Veteran's testimony that his right knee pain began in service and has continued since then; however, there is no evidence of a chronic right knee disorder in service or in the years following service until reports of intermittent right knee pain in 2015.  The Board finds his account to lack credibility.  While the Veteran believes his right knee osteoarthritis is related to his military service, he is not competent to provide an etiology in this case.  Though the Veteran may be competent to describe the particular symptoms from which he suffers, determining the etiology of osteoarthritis requires specialized medical education/knowledge or training which the Veteran is not shown to have.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence.

Based on a review of the medical and lay evidence, the Board finds that the evidence does not support a finding that the Veteran's diagnosed right knee osteoarthritis is caused by or a result of military service noise exposure.

As the evidence is not in approximate balance but is persuasively against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. � 5107 (b) is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

4. Entitlement to service connection for migraine headaches to include as secondary to hearing loss and tinnitus

The Veteran contends that his diagnosed migraine headaches are secondary to his hearing loss and tinnitus disorders.  The Board notes that initially, the Veteran's claim was based on secondary service connection; however, during the Board hearing it was unclear whether he was claiming direct service connection as well.  Accordingly, the claim will be adjudicated on both a direct and secondary service connection basis.

A review of the STRs shows that the Veteran's entrance and exit examination were negative for any finding or report of headaches or migraines.  In March 1978 the Veteran complained of dizziness and headache along with coughing, chills, and a sore throat.  The Veteran was assessed with the flu and put on light duty for 72 hours.  Although the Veteran was seen for various other complaints, there are no further treatment notes regarding headache symptoms in the STRs.

A January 2016 VA headache examination reflects a 2015 diagnosis of migraines.  During the examination, the Veteran reported the onset of headaches/migraines occurred in 1985.  The examiner opined that the Veteran had a diagnosis of headaches/migraines due to hearing loss and tinnitus, but it is less likely as not the headaches/migraines were incurred in or caused by service.  The rationale was that the current records in the claims file show no evidence of a direct correlation to his service.

Based on a review of the medical evidence and lay statements, the Board finds that the evidence does not support a finding that service connection is warranted for headaches/migraines either on a direct or secondary service connection basis.  First, there is no evidence of a chronic headache disorder in service.  Additionally, the Veteran self-reported that his headaches began in 1985, which is six years after he was discharged from service.  Furthermore, while the January 2016 VA examiner provided a nexus opinion between the Veteran's headaches/migraines and his diagnosed hearing loss and tinnitus, the examiner specifically found there was no basis to relate the Veteran's headaches/migraines to his active duty service.  Lastly, although the VA examiner opined the Veteran's headaches/migraines were due to his hearing loss and tinnitus, unfortunately, the Veteran is not service connected for hearing loss or tinnitus.  Since direct service connection for hearing loss or tinnitus is not warranted, it follows that service connection cannot be granted for a right knee disability as secondary to hearing loss or tinnitus.

Accordingly, as the evidence is not in approximate balance but is persuasively against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. � 5107 (b) is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

5. Entitlement to service connection for unspecified depressive disorder secondary to hearing loss, tinnitus, and right knee disorder

The Veteran contends that his diagnosed unspecified depressive disorder is secondary to his hearing loss, tinnitus, and/or right knee osteoarthritis.  Specifically, during the March 2023 hearing, the Veteran testified that when his hearing loss worsened, he became depressed.

A January 2016 VA mental disorder examination noted a diagnosis of unspecified depressive disorder.  During the examination, the Veteran reported that he started seeing a psychiatrist through the VA three months prior and was currently prescribed Lexapro.  The examiner opined it is at least as likely as not the Veteran's depression was incurred as a result of his hearing loss and knee problems.  The rationale was that the Veteran reported his depressive symptoms began when his hearing problems increased.

(Continued on the next page)

?

Although the VA examiner provided a positive nexus opinion between the Veteran's diagnosed mental disorder and his hearing loss and right knee problems, unfortunately, the Veteran is not service connected for hearing loss or a right knee problem.  Since direct service connection for hearing loss and a right knee disorder is not warranted, it follows that service connection cannot be granted for an unspecified depressive disorder as secondary to hearing loss or the right knee.

As the evidence is not in approximate balance but is persuasively against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. � 5107 (b) is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mitchell, Kimberly 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.


judge_norm: P M DILORENZO

disposition: granted

text:
Citation Nr: 23025000
Decision Date: 05/01/23	Archive Date: 05/01/23

DOCKET NO. 09-17 590
DATE: May 1, 2023

ORDER

Entitlement to a 40 percent disability rating, and no higher, for limitation of extension of the left knee from February 24, 2015, through April 09, 2019, is granted.

FINDINGS OF FACT

1. Resolving all doubt in favor of the Veteran, for the period from February 24, 2015, through April 09, 2019, the Veteran's limitation of extension of the left knee manifested as 30 to 44 degrees.

2. From February 24, 2015, through April 09, 2019, the Veteran's left knee extension has not been limited to 45 degrees or more, including during flare-ups or with repeated use over time and when considering factors such as pain, weakness, and fatigability.

CONCLUSION OF LAW

The criteria for a 40 percent disability rating and no higher for limitation of extension of the left knee from February 24, 2015, through April 09, 2019, are met.  38 U.S.C. �� 1155, 5107; 38C.F.R. ��4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from May 1984 to October 1984, from April 1986 to June 1986, and from April 1991 to July 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and May 2013 rating decisions issued by the Department of Veteran Affairs (VA) Regional Office (RO).  An April 2019 rating decision granted a separate 40-percent rating for limitation of extension of the left knee under DC 5003-5261 effective April 10, 2019.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board Hearing in April 2017; a transcript is of record.

The Board remanded this case in October 2019 for further development.  The Board finds that there has been substantial compliance with the Board's October 2019 remand.  See Stegall v. West, 11 Vet. App.268 (1998).

1. Entitlement to a 40 percent disability rating and no higher for limitation of extension of the left knee prior to April 09, 2019.

The Veteran seeks a compensable rating for limitation of extension of the left knee for the period prior to April 09, 2019.  The Veteran contends that from February 2015 his left knee condition was worse than contemplated by the noncompensable rating currently assigned for the period on appeal, under DC 5261 (limitation of extension).  The Veteran contends that his left knee disability worsened since the February 2015 VA medical examination.  See April 2017 Hearing Transcript.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

The veteran's entire history is to be considered when making disability evaluations.  See 38 C.F.R. � 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection.  See Fenderson v. West, 12 Vet. App. 119, 125 (1999); 38 U.S.C. � 5110; 38 C.F.R. � 3.400.  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. � 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. � 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. � 4.40; DeLuca, 8 Vet. App. at 205.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion.  Id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. � 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. � 4.59.  Painful motion is considered limited motion at the point that pain sets in. See VAOPGCPREC 9-1998.

VA is required to evaluate the Veteran's disability under the most appropriate rating criteria that will provide the most benefit to the Veteran.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993).

In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006).

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); Lynch v. McDonough, 21 F.4th 776. (Fed. Cir. 2021).

Rating Criteria

VA amended the rating criteria for musculoskeletal system disabilities effective February 7, 2021.  These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021.  Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.  The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Here, Diagnostic Code 5261 was not changed by the February 7, 2021, amendments.  See 38 C.F.R. � 4.71a.  Therefore, the issue of which rating criteria to apply is not before the Board.

Diagnostic Code 5261 provides for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively.  See 38 C.F.R. � 4.71a, DC 5261.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. � 4.71, Plate II.

Analysis

For the following reasons, the Board finds that the criteria for a rating of 40 percent and no higher, for limitation of extension of the left knee for the period on appeal (February 24, 2015, through April 9, 2019) are satisfied.

In February 2015 the Veteran was afforded a Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) (February 2015 Knee DBQ).  The examination report reflects that the Veteran endorsed flare-ups causing additional functional loss.  See February 2015 Knee DBQ.  The medical examiner stated that an estimate of additional functional loss in terms of range of motion during a flare-up could not be provided, as the Veteran was not experiencing a flare-up at the time of the examination.  Id.

The July 2017 Board Decision remanded the claim based on the Veteran's testimony at the April 2017 Hearing, where he indicated that his left knee disability had worsened since the February 2015 Knee DBQ was performed.  See April 2017 Hearing Transcript: July 2017 Board Decision.

In April 2019 the Veteran was afforded a Knee DBQ.  See April 2019 Knee DBQ.  The medical examiner documented range of motion measurements with initial flexion to 140 degrees and extension to 0 degrees.  Id.  On repetitive use testing and during flare-ups, it was estimated that flexion was to 100 degrees and extension to 30 degrees.  Id.  The Veteran reported that during flares, he has significant left knee pain which limits prolonged standing and ambulation and causes functional loss with any prolonged standing or walking.  Id.

Based on the April 2019 Knee DBQ findings, which show an estimated left knee limitation of extension of 30 degrees and painful motion of the knee, the RO granted a separate 40 percent rating for knee limitation of extension effective April 10, 2019, the date of the April 2019 Knee DBQ.

In October 2019, the Board remanded the claim for an addendum retrospective medical opinion to determine the degree, if any, of limitation of extension of the Veteran's left knee during flare-ups at the time of the February 2015 VA examination given the April 2019 VA examiner's estimate of limitation of extension of the Veteran's left knee to 30 degrees with repeated use over time or during flare-ups.  The Board notes that an estimate was not provided prior to February 2015, as the evidence does not show flare-ups until the date of the February 2015 examination.

In January 2023 the Veteran was afforded a Medical Opinion DBQ.  See January 2023 Medical Opinion DBQ.  The medical examiner opined:

I have reviewed documentation of all medical records pertinent to the remanded conditions including the remand letter dated October 1, 2019.  The claimant served active duty in the Army from Apr 21, 1986, to Jun 30, 1986 and from May 23, 1984 to Oct 04, 1984.  The record review shows the claimant has left knee limitation of extension and flexion, associated with left knee injury and medial meniscectomy residuals for which he is service connected.  Per MRR, 2/8/1984 enlistment exam/report of medical history examiner noted left knee very stable, and veteran noted torn ligament (MCL) left knee age 15 requiring surgery.  6/8/1988 c/o twisting left knee x 5 weeks ago, recurring pain from previous injury Imp: tendon/ligament injury left knee.  MRI of left knee Left knee 11/4/1995 shows ACL is torn.  Xray left knee 2/28/2012 shows degenerative changes.

The 2015 DBQ was done 8 years ago and was completed by a different provider, and I am unable to provide such an estimation without resorting to mere speculation.  In April 2019 VA examiner's estimate of extension was limited to 30 degrees during flare-ups.  His knee extension likely has worsened over time, given normal aging processes, however providing an actual value for his knee extension 8 years ago, during a flare up or after repetitive use is impossible.

Id.

In the February 2015 Knee DBQ, the medical examiner opined that an estimate of additional functional loss in terms of range of motion during a flare-up could not be provided, because the Veteran was not experiencing a flare-up at the time of the examination.  However, that explanation is insufficient under Sharp v. Shulkin, 29 Vet. App.26 (2017) (which was issued after the Board's July 2017 remand).

If an examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran's lay statements.  An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups will be considered inadequate.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Therefore, the Board finds that the February 2015 Knee DBQ is inadequate for rating purposes pursuant to Sharp because the examiner failed to estimate the degree of additional range-of-motion loss during flare-ups and after repeated use over time.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The April 2019 Knee DBQ does document an estimated limitation of extension due to flare-ups in compliance with Sharp, and this objective evidence is consistent with the January 2023 Medical Opinion DBQ, in which the medical examiner noted that the Veteran's "knee extension likely has worsened over time."  Further, it is also consistent with the Veteran's April 2017 sworn testimony that his left knee disability had worsened since the February 2015 VA examination.

Therefore, the Board finds that the April 2019 DBQ results are consistent with the Veteran's lay statements and show the most probative medical findings for the period on appeal.

Notably, there is no other medical evidence during the period on appeal upon which the Board may rely, and the medical examiner opined in the January 2023 Medical Opinion DBQ, "providing an actual value for his knee extension 8 years ago, during a flare up or after repetitive use is impossible."  The Board agrees with his notion.

Accordingly, the Board finds that an additional retrospective medical opinion addressing Sharp in relation to the inadequate February 2015 DBQ, now eight years old, would be futile, as any other medical examiner would be unable to retrospectively assess or observe additional range of motion limitations during flare-ups or after repeated use over time without mere speculation.

Therefore, the Board will retroactively apply the Sharp compliant limitation of motion findings from the April 2019 DBQ (limitation of extension of the leg to 30 which warrants a 40 percent disability rating) to the claim for the period on appeal.

Additionally, the Board finds that the probative medical evidence of record shows that the Veteran did not meet the criteria for a disability rating in excess of 40 percent for the period prior to April 10, 2019, because the Veteran's left knee extension was not limited to 45 degrees or more, including during flare-ups or with repeated use over time and when considering factors such as pain, weakness, and fatigability.

Accordingly, the Board finds that a rating of 40 percent, but no higher, for the Veteran's service-connected limitation of extension of the left knee under Diagnostic Code 5261 is warranted for the period from February 24, 2015, to April 10, 2019.  38 C.F.R. � 4.71a, Diagnostic Code 5261.

Consequently, the benefit-of-the-doubt rule does not apply for a rating in excess of 40 percent for the Veteran's service-connected limitation of extension of the left knee, therefore it is denied.  See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Lynch v. McDonough, 21 F.4th 776. (Fed. Cir. 2021).

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H.E. Brand, 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.


judge_norm: KELLI A KORDICH

disposition: remanded

condition: heart

condition: diabetes

text:
Citation Nr: 23026000
Decision Date: 05/04/23	Archive Date: 05/04/23

DOCKET NO. 19-37 194
DATE: May 4, 2023

REMANDED

Entitlement to service connection, to include on a presumptive basis, for a heart disability is remanded.

Entitlement to service connection, to include on a presumptive basis, for diabetes mellitus, type II is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1963 to October 1966.  This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2018 and September 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared for an October 2020 hearing before the undersigned Veterans Law Judge in. The hearing transcript is associated with the claims file.

In December 2020, the Board denied entitlement to service connection for a heart disability and diabetes mellitus, type II.  The Veteran appealed the Board's decision denying entitlement to service connection for a heart disability and diabetes mellitus, type II to the United States Court of Appeals for Veterans Claims (Court). In May 2022, the Court, in a Memorandum Decision, overturned the Board's decision, and it remanded the claim to the Board.

The appeal was last remanded by the Board in January 2023 for additional development. Regrettably, more development is still necessary.

The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. � 20.900(c).

1. Entitlement to service connection, to include on a presumptive basis, for a heart disability is remanded.

2. Entitlement to service connection, to include on a presumptive basis, for diabetes mellitus, type II is remanded.

The Veteran contends that he was exposed to herbicide agents during his temporary assignment to Camp St. Barbara as an Army Photographer.

The Veteran's claims were most recently remanded in January 2023 to attempt to verify whether herbicide agents were used or stored at Camp St. Barbara, South Korea, including by KATUSA (Korean Augmentation to the United States Army) soldiers, during the summer of 1966.

A January 2023 Records Research Response was affiliated with the Veteran's claims file and stated: "A professional researcher from the Veterans Benefits Administration, Office of Field Operations, Military Records Research Center, has completed comprehensive research on the Veteran's claimed exposure event, claiming that from June 22, 1965 to October 10, 1966 while assigned to the Headquarters Company, 51st Signal Battalion, 8th Army, in Korea, the Veteran was exposed to herbicides during his service within the Korea Demilitarized Zone (DMZ).  The following sources located in iConnect were reviewed in an attempt to substantiate the Veteran's claimed event: the 1965 and 1966 unit histories submitted by Eighth US Army.  The 1966 unit history reveals non-tactical mission included the installation and maintaining of lead covered cable used at Camp Red Cloud and Vicinity plus that connecting the Joint Duty Office on the Demilitarized Line to the Joint Security Areas south of the DMZ. Records did not mention the use of storage of herbicides."

The Board finds that the January 2023 Records Research Response does not substantially comply with the January 2023 remand directives as it makes no mention of Camp St. Barbara and does not outline any attempts to ascertain whether herbicide agents were used or stored at Camp St. Barbara.  See Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the Board finds that remand is required to ensure substantial compliance with the prior January 2023 remand directives.

The matters are REMANDED for the following action:

1. Attempt to verify whether herbicide agents were used or stored at Camp St. Barbara, South Korea, including by KATUSA (Korean Augmentation to the United States Army) soldiers, during the summer of 1966.

If more details are needed, contact the Veteran to request the information.  If there is still insufficient information to verify exposure to herbicide agents, issue a formal finding outline the steps taken to assist the Veteran an notify the Veteran of VA's inability to verify the reported in-service herbicide agent exposure.

(Continued on the next page)

?

2. Then, readjudicate the claim.  If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board.

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Palombi, 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.


judge_norm: DEBBIE A BREITBEIL

judge_role: Acting Veterans Law Judge

condition: hip

text:
Citation Nr: 23027000
Decision Date: 05/07/23	Archive Date: 05/07/23

DOCKET NO. 16-01 977
DATE: May 7, 2023

REMANDED

Entitlement to service connection for a left hip disability is remanded.

Entitlement to service connection for a right hip disability is remanded.

Entitlement to service connection for a bilateral hearing loss disability is remanded.

REASONS FOR REMAND

The Veteran served honorably in the United States Army on active duty from September 1981 to September 2005.   This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified before the undersigned at a hearing in July 2009, and a copy of the hearing transcript is associated with the Veteran's claims file.  The Board remanded these matters to the RO in January 2010, July 2019, and January 2022 for additional evidentiary development and readjudication.

1. Entitlement to service connection for a left hip disability

2. Entitlement to service connection for a right hip disability

It is necessary to remand this appeal again to address deficiencies in the examination of the Veteran's bilateral hip disabilities and to afford the Veteran another VA examination in light of new statutory provisions.

A May 2022 VA examiner found that all of the Veteran's hip symptoms were subjective, without objective evidence of hip pathology, so a diagnosis was not warranted.  Notably, other than hip pain, the examiner did not address other hip complaints that were previously reported by the Veteran in the May 2011 VA examination, including limitation of motion, stiffness, weakness, instability, and flare-ups.  As for the bilateral hip pain, the examiner specifically stated (in an August 2022 addendum report) that the likely etiology was unrelated to the Veteran's period of service and more likely a symptom of her service-connected (left lower extremity) radiculopathy and nonservice-connected fibromyalgia.  (Service connection is not in effect for right lower extremity radiculopathy, so the right hip pain is not explained by the left lower extremity radiculopathy.)  A May 2011 VA examination report reflects a diagnosis of fibromyalgia, with a finding that it was unrelated to service, and VA treatment records show a history of fibromyalgia, with some records suggesting the Veteran has fibromyalgia as a manifestation of Sjogren's syndrome.  See December 14, 2016 VA rheumatology consult.  This evidence is significant because it implicates additional theories of entitlement.

The Veteran served in Southwest Asia during the Persian Gulf War, and the VA must obtain adequate medical opinions on whether her claimed disabilities may be considered as a medically unexplained chronic multi-symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. � 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive).  See VA Memorandum, January 27, 2023 (confirming that the Veteran has covered service under 38 C.F.R. � 3.317 as a Persian Gulf Veteran).  The opinions of record do not include substantial discussion of the etiology and pathophysiology of the bilateral hip pain.  In that regard, fibromyalgia, to which a VA examiner has attributed (in part) the Veteran's hip pain, is specifically deemed a MUCMI under 38 C.F.R. � 3.317(a)(2)(B)(2), yet the examiner did not fully address fibromyalgia including whether it was part of Sjogren's syndrome or opine whether either disability was related to the Veteran's Persian Gulf service.  The examiner also did not indicate the extent to which the hip pain is attributable to service-connected radiculopathy on the left lower extremity, as separate and apart from other disability.  Further, it is noted that on a May 2011 VA examination, the Veteran reported various hip symptoms other than pain (i.e., limitation of motion, stiffness, weakness, instability, and flare-ups), but the May 2022 VA examiner did not directly address them.  Therefore, an additional opinion is necessary to clarify the etiologies and pathophysiologies of the symptoms affecting the hips.

Additionally, under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), effective from August 10, 2022, Section 303 implemented 38 U.S.C. � 1168, requiring a disability examination and medical opinion be requested for certain non-presumptive conditions involving toxic exposure risk activity (TERA).  For such claims, VA is required to provide a disability examination and medical opinion when the Veteran submits a claim for compensation, has evidence of a disability and evidence of participation in a TERA, and such evidence is not sufficient to establish service connection for the disability.  A Veteran can claim participation in a TERA explicitly or implicitly through service in a location presumed associated with toxic exposure or through records showing participation in a TERA; or, if VA has conceded exposure in a prior claim, or the file has a claim attributable to toxic exposure.

In this case, a TERA claim has been implicitly claimed through the Veteran's confirmed service in the Southwest Asia theater of operations, as defined by 38 C.F.R. � 3.317(e)(2), for at least one day between August 2, 1990 through July 31, 1991.  See December 3, 2022 VA Memorandum (providing verification from the Department of Defense that the Veteran had service that constitutes presumptive toxic exposure under 38 U.S.C. � 1119).  There is evidence of a bilateral hip disability, and the Veteran is presumed to have participated in a TERA, but the evidence is not sufficient to establish service connection.  Thus, a VA medical examination with opinion should be arranged pursuant to 38 U.S.C. � 1168(a).

3. Entitlement to service connection for bilateral hearing loss disability

Following further development on the bilateral hearing loss claim as directed by the Board remand, the RO granted service connection for tinnitus in a June 2022 rating decision but did not readjudicate the hearing loss claim (there is no supplemental statement of the case regarding bilateral hearing loss).  Therefore, on account of this due process deficiency, the case is returned to the RO for readjudication.

Additionally, the May 2022 medical opinion of the VA examining audiologist is not adequate to decide the claim.  As the record now stands, that opinion appears internally inconsistent.  For example, while the examiner offered a positive nexus opinion on the Veteran's tinnitus and attributed it to in-service excessive noise exposure, she provided a negative nexus opinion on right and left ear hearing loss in part because the Veteran did not experience acoustic trauma.  Also, the examiner's opinion indicates that the Veteran did not have a bilateral hearing loss disability in accordance with the requirements of 38 C.F.R. � 3.385, but she did not adequately address evidence of right ear hearing loss per 38 C.F.R. � 3.385 (on the basis of the word recognition score alone) during the August 2010 VA examination in terms of explaining the significance of such finding.  Therefore, a fully-informed decision cannot be made on this issue until these deficiencies are rectified.

These matters are REMANDED for the following actions:

1. Obtain for association with the claims file all updated records of VA treatment the Veteran has received for hip disabilities and any bilateral hearing loss disability.  Also, request the Veteran to furnish any relevant private treatment records not already on file.  Alternatively, she may submit a medical release form, authorizing the VA to obtain those records on her behalf.  If she submits such an authorization, obtain the records.

2. Then, arrange for the Veteran to undergo a VA hip examination regarding the nature and etiology of all bilateral hip disability, which should include a TERA-specific opinion.  The claims file must be reviewed by the examiner in conjunction with the examination.  After examination of the Veteran and review of pertinent medical records, the examiner should respond to the following:

(a). Identify all disabilities involving the Veteran's left and right hips during the period on appeal (since April 2007), even if he is asymptomatic at the time of examination, to include any pain, limitation of motion, stiffness, weakness, instability, and flare-ups.  For the purpose of the examination, a disability includes functional impairments of earning capacity (e.g., as due to pain) even in the absence of a diagnosis.  See Saunders v. Wilkie, 886 F.3d 1356 (2018).

(b). Regarding each diagnosed hip disability or hip symptom causing functional impairment, opine whether it is at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) that the disability/symptom had onset during her period of service from September 1981 to September 2005, or is otherwise related to service, to include her service-connected residuals of a stress fracture of the pelvis, any exposures during her service in Southwest Asia, and her documented in-service reports of symptoms involving the hips.  See, e.g., service treatment record entries dated in January 1982, April 1982, November 1982, May 1985, June 1985, October 1985, May 1986, October 1986, January 1987, January 1999, January 2000, regarding the left hip; and October 1984 and November 1987, regarding both hips.

(c). The Veteran has been verified as having qualifying service in the Persian Gulf, for purposes of applying 38 C.F.R. � 3.317.  See VA Memorandum, January 27, 2023.  Thus, regarding each hip symptom causing functional impairment that cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability or multi-symptom illness, resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period.  Further, for each hip symptom causing functional impairment, indicate whether, and the extent to which, it is attributable to any diagnosed fibromyalgia, Sjogren's syndrome, and/or left lower extremity radiculopathy.

(d). The Veteran has been confirmed as having covered service for purposes of the recent PACT Act.  See VA Memorandum, December 3, 2022.  Thus, the effects of her exposure to toxic environmental hazards on her claimed disabilities should be addressed.  Regarding each diagnosed hip disability or hip symptom causing functional impairment, opine whether it is at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) related to or otherwise caused by a TERA, as per 38 U.S.C. � 1168(a).  Why or why not?

(e). Specifically discuss the September 2007 statements of Dr. M.L., who asserted the Veteran's left and right hip conditions "may" be related to service, expressing agreement or disagreement with the statement and providing an explanation for the agreement or disagreement.

(f). Consider the Veteran's lay reports concerning hip symptoms during and since service, and specifically comment on whether there is any medical reason to accept or reject the proposition that the reported symptoms during and since service represented the onset of any current left or right hip disability.  (In other words, do the Veteran's reports about her symptoms align with how any currently diagnosed disability is known to develop, or are her reports generally inconsistent with medical knowledge or implausible?)

Complete rationale, with citation to relevant evidence as appropriate, must be provided for all opinions offered.  If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge or a deficiency in the record or examiner.

In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions.  Neither her credibility nor the lack thereof should be presumed in this remand.

3. Return the claims file to the examiner who furnished the May 2022 medical opinion for an addendum opinion to clarify the nature and etiology of any current hearing loss disability.  (If she is unavailable or unable to provide the addendum opinion sought, send the claims file to an audiologist or another examiner qualified to provide the requested opinion.)  Upon review of the claims file including this Remand, the examiner is asked to respond to the following:

(a). Opine as to whether it is at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) that any current hearing loss disability (in accordance with 38 C.F.R. � 3.385) began in service, was caused by service, or is otherwise related to service, to include as due to the (conceded) excessive noise exposure therein.  If any noise trauma in service is found to not be the cause of any currently diagnosed hearing loss disability, the examiner must identify the etiological factor(s) deemed more likely and explain why that is so.

(b). Reconcile the evidence of a right ear hearing loss disability in accordance with 38 C.F.R. � 3.385 (solely on the basis of a speech recognition score of less than 94 percent) during the August 2010 VA examination, with the May 2022 audiogram findings that do not show speech recognition scores less than 94 percent.

(c). Consider the (conceded) in-service noise exposure and the Veteran's lay reports concerning continuous hearing loss during and since service, and specifically comment on whether there is any medical reason to accept or reject the proposition that the noise exposure/reported hearing difficulty during and since service represented the onset of any current bilateral hearing loss disability.  (In other words, do the Veteran's reports about her symptoms align with how any currently diagnosed disability is known to develop, or are her reports generally inconsistent with medical knowledge or implausible?)

A complete rationale must be provided for all opinions offered.  The examiner is advised that the absence of documentation (of hearing loss) during or after service cannot be the sole basis for rejecting a possible nexus to service, but that providing a likely etiology (beyond any assertion that there was an absence of documentation of the disability in or after service) may overcome this.  The absence of a hearing loss disability during the Veteran's period of service, including at the time of her separation examination, is not fatal to her claim.

In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions.  Neither her credibility nor the lack thereof should be presumed in this remand.

Debbie A. Breitbeil

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael Duffy

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.


judge_norm: CHRISTOPHER A WENDELL

text:
Citation Nr: 23028000
Decision Date: 05/11/23	Archive Date: 05/11/23

DOCKET NO. 16-61 268
DATE: May 11, 2023

ORDER

Entitlement to service connection for bilateral pes planus on an aggravation basis is granted.

FINDING OF FACT

The Veteran's bilateral pes planus was noted at entry into service and therefore considered a preexisting disability, was aggravated by active service.

CONCLUSION OF LAW

The criteria for service connection for bilateral pes planus, on the basis that a preexisting disability was aggravated by active military service, are met. 38 U.S.C. �� 1110, 1111, 1153, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.306.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from October 2011 to February 2015 and is a recipient of the Combat Infantryman Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for any left or right foot condition.

This matter was remanded by the Board in March 2022 and October 2022 for additional development.

1. Entitlement to service connection for aggravation of bilateral pes planus

The Veteran contends that the worsening of his preexisting pes planus was directly related to conditions and events that occurred while he was on active duty in Afghanistan.

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. � 1110; 38 C.F.R. � 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. � 3.303 (d).

However, additional laws and regulations pertain to the Veteran's claim. A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. � 1111; 38 C.F.R. � 3.304 (b). Here, the Veteran was noted to have bilateral asymptomatic pes planus in the April 2011 enlistment examination report. Therefore, the presumption of soundness does not apply with regard to pes planus in this case.

The issue therefore becomes whether the Veteran experienced an aggravation of preexisting pes planus in active military service. Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. � 1153; 38 C.F.R. � 3.306 (b). The usual effects of medical and surgical treatment in-service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service-connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. � 3.306 (b)(1). Similarly, temporary or intermittent flare-ups of the preexisting disorder during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991).

If the preexisting disorder underwent an increase in severity during service, it is presumed to have been aggravated by service unless there is clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 U.S.C. � 1153; 38 C.F.R. � 3.306 (b); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) ("There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the "presumption of aggravation"). The term "clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003).

Further, when a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. � 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected").

On his February 2011 enlistment examination, the Veteran was noted to have pes planus-mild and moderate asymptomatic.

An October 2014 separation examination noted that the Veteran did not self-report any injuries or problems with his feet. Examining medical personnel noted that the Veteran's feet and arches were normal.

In March 2016, the Veteran filed his claim for entitlement to service connection for a bilateral foot condition.

The Veteran submitted correspondence along with his December 2016 VA form 9, indicating that prior to enlistment, his feet did not bother him but symptoms onset while he was deployed to Afghanistan. The Veteran reported that his duties required him carrying heavy loads while on patrol which caused his feet to become symptomatic.

The Veteran has also submitted photographs from his deployment showing equipment he carried while deployed. He has also submitted correspondence reporting that his bilateral foot condition was aggravated during the military occupation in Afghanistan where he was required to carry a very heavy combat load and rucked with approximately 100 pounds on a daily basis as an 11B infantryman. He also reported pain and swelling with the use of his feet and functional impairment with walking and standing.

A July 2022 VA foot disability benefits questionnaire (DBQ) show that the Veteran was diagnosed with bilateral pes planus. The Veteran reported that the condition onset during active service and described current symptoms as pain with prolonged standing, walking, or running, and swelling in feet after use. Cracking of the feet when walking barefoot was also reported. The Veteran also reported a dull pain on tops and bottoms of the feet.

As noted above, the Veteran's DD-214 reflects that he is a recipient of the Combat Infantryman Badge. Therefore, he is considered to have engaged in combat. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred or aggravated a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. See Reeves v. Shinseki, 682 F. 3d 988, 998 (Fed. Cir. 2012).

The Veteran's service treatment records showed no evaluation or documented treatments to suggest aggravation of condition over time with active service. However, while there is no evidence of complaints or treatment of foot pain in the Veteran's service treatment records, because the Veteran engaged in combat with the enemy, such evidence is not required. The purpose of the combat presumption is to relieve veterans of the burden of assembling such records, given that they typically do not survive combat. Reeves, 682 F.3d at 998.

For the following reasons, service connection for bilateral pes planus is warranted based on aggravation of a preexisting disability.

In his written statements and statements made during the VA examinations, the Veteran indicated that he experienced pain, swelling, and fatigue with prolonged activities, and was diagnosed with bilateral flat feet, and he has therefore met the current disability requirement. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet).

Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board finds the Veteran's statements, that he began experiencing foot problems during service which have continued since separation from service, to be competent and credible lay evidence, as they pertain to first-hand observations of his bilateral foot difficulties during and since service. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Given the Veteran's competent and credible statements, the Board finds that his bilateral pes planus worsened during service and resulted in a progressive worsening of his pes planus since is separation from service. There is no conflicting evidence of record, thus, aggravation is presumed.

As noted above, the presumption of aggravation can only be rebutted by clear and unmistakable evidence that the increase was due to the natural progress of the disease. The Board notes that the Veteran underwent VA examinations and nexus opinions were provided in the July 2022, November 2022, and March 2023. However, each of these examiners to a significant extent relied on the fact that there were no service records showing any treatment for pes planus in service, and further that there were no records since showing additional treatment. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, as these examination reports are inadequate for adjudication purposes and the Veteran has competently reported in-service aggravation, the Board finds that the presumption of aggravation has not been rebutted, therefore, the Veteran's preexisting bilateral pes planus noted at entry into service was aggravated by active-duty service.

Ultimately, because an increase in the Veteran's preexisting disability has been determined, the Board further findings that the evidence does not clearly and unmistakably establish that the worsening of his preexisting pes planus was due to the natural progression of the disability. As the presumption of aggravation has not been rebutted, service connection based on aggravation of a preexisting disability is warranted.

CHRISTOPHER A. WENDELL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Dworkin, 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.


judge_norm: JONATHAN B KRAMER

condition: back

text:
Citation Nr: 23029000
Decision Date: 05/17/23	Archive Date: 05/17/23

DOCKET NO. 19-23 743
DATE: May 17, 2023

ORDER

Entitlement to service connection for a low back disability is denied.

FINDING OF FACT

The available evidence of record does not show that the Veteran's low back disability is related to active duty service.

CONCLUSION OF LAW

The criteria for service connection of a low back disability have not been met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. � 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from September 1968 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2022, the Veteran testified at a Board hearing held by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record.

It is acknowledged that VA medical records have been entered into the record since the appeal had been transferred to the Board, and there is no waiver of regional office consideration thereof. However, as this evidence does not address the question of a relationship between the Veterans low back disability and service, such evidence does not have a bearing on the appeal and solicitation of a waiver is unnecessary under the circumstances.38 C.F.R. �� 19.37(b); 20.1305.

Entitlement to service connection for a low back disability is denied.

The Veteran contends that his low back disability is due to an injury sustained during his military service. For the reasons set forth below, the Board finds that service connection for a low back disability is not warranted.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. �� 1110, 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).

A review of the Veteran's service treatment records (STRs) shows that the Veteran complained of back pain during service in February, March, and April 1969. See November 2013 STR - Medical. During both the February and March 1969 sick call visits, the Veteran was diagnosed with a lumbar strain. However, during the Veteran's March 1972 separation examination, he indicated that he had no back problems or abnormalities related to his spine.

A March 2017 VA examination report included an in-person examination of the Veteran, a review of the claims file, and a recitation of the Veteran's medical history and complaints. The examiner noted that the Veteran had a diagnosis of lumbar strain from 1972. However, the examiner found that the Veteran's low back strain that occurred during military service was an acute injury, as the strain was treated with medication and appeared to have resolved, given that the Veteran did not mention any issues with his lower back during his March 1972 separation examination, and that there were no complaints of or treatment for lower back problems in the record. The examiner reasoned that the Veteran's current low back pain is due to chronic back strain that is unrelated to military service.

In the Veteran's private June 2018 disability benefits questionnaire (DBQ) completed by Dr. P. H., it was noted that the Veteran has had constant back pain since injuring his back during service. However, this provider did not address the March 2017 VA examination report or provide a nexus statement explaining how the Veteran's in-service injury is more likely than not the reason for his current back pain.

During the Veteran's August 2022 Board hearing before the undersigned VLJ, the Veteran stated he went to a VA hospital in November 1972 to seek treatment for his back pain, at which point the Veteran was given pain medication. The Veteran stated that he was also referred to a back specialist at Edgewater Medical Center in Chicago, who treated the Veteran's back for three to four months. However, the Veteran stated that he was unable to continue treatment once his job moved to a different city and he lost his health insurance. Hr'g Tr. at 9. The Veteran stated that he tried to get records of his treatment there, but the medical center had been closed and all of the records were destroyed. Id. at 10. The Veteran also stated that he next began going to Jesse Brown VAMC in Chicago, where his next physician prescribed pain medication and advised the Veteran that he needed to lose weight. Eventually, that physician retired, and the Veteran began seeing another provider at the VAMC, who changed the Veteran's prescription pain medication. The Veteran finished by stating that he believes his chronic back pain stems from being hit in the back by an oxygen tank during service is the reason for his chronic back pain. Later during the hearing, the VLJ advised the Veteran that it might be beneficial to get an opinion from a private doctor stating whether the Veteran's back pain is related to the Veteran's in-service injury.

The evidence shows that the Veteran has a current low back disability, having been diagnosed with a lumbar strain in service; and which was confirmed during his March 2017 VA examination. The evidence further shows that the Veteran had an in-service injury for which he visited sick call in February 1969. Now, the Board must determine, based on the evidence available, whether a nexus exists between the Veteran's low back disability and his in-service injury.

The Board finds the March 2017 VA physician's opinion highly probative in this case. The VA physician gave a thorough explanation supported by facts consistent with the record. He explained why the Veteran's current low back disability would likely be unrelated to service, including the fact that the Veteran made no complaints related to his lower back during the separation examination, as well as the lack of documentation of any future complaints of or treatment for low back pain. The examiner considered the Veteran's subjective history and statement and determined that the Veteran's low back pain was the result of an injury unrelated to military service. There is, moreover, no competent evidence, such as a medical opinion, contradicting the VA physician's opinion or otherwise supporting a nexus between a current low back disability and service.

The Board notes the Veteran's private June 2018 DBQ, in which Dr. P.H. stated that the Veteran has had constant low back pain since being injured in 1969; however, this appears to be just a recitation of the history reported by the Veteran. The physician does not provide any rationale to support that observation aside from stating a bare assertion; nor is it stated how the March 2017 VA examiner's opinion was incorrect. Therefore, the June 2018 DBQ has less probative value, as it does not contain any explanation regarding the asserted nexus of the Veteran's low back disability and his in-service injury. In contrast, the March 2017 VA examination report provided a rationale, based on the available medical evidence, to support the medical opinion explaining why the current low back disability is not related to the service.

Accordingly, as the evidence of record has not shown a nexus between the Veteran's low back disability and the claimed in-service injury, the claim of entitlement to service connection for a low back disability is denied.

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JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Dozier, 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.