Citation Nr: 18160561
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-02 403
DATE:	December 27, 2018
ORDER
New and material evidence sufficient to reopen the claim of service connection for a right shoulder disability has been received, and to that extent only, the claim is granted.
New and material evidence sufficient to reopen the claim of service connection for a hearing loss disability has been received, and to that extent only, the claim is granted.
Entitlement to service connection for a right shoulder disability is denied.
Entitlement to service connection for a hearing loss disability is denied.
REMANDED
Entitlement to an increased initial rating in excess of 10 percent for a right knee disability is remanded.
 
FINDINGS OF FACT
1. In July 1982, the RO denied an appeal to reopen claims for entitlement to service connection for a right shoulder disability and a hearing disability.  The rating decision was not appealed and new and material evidence was not received during the one-year appeal period following that decision, and thus, that decision is final.
2. In November 2011, the RO reopened but denied the claim to entitlement to a hearing loss disability.  The rating decision was not appealed and new and material evidence was not received during the one-year appeal period following that decision, and thus, that decision is final.
3. Evidence received since the July 1982 and November 2011 rating decisions regarding the Veteran’s claims for service connection for, respectively, the right shoulder disability and the hearing loss disability, is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for the right shoulder disability and a hearing loss disability.
4. A right shoulder disability manifested more than one year after separation, and is not shown to be causally or etiologically related to an in- service event, injury, or disease.
5. A hearing disability clearly and unmistakably existed pre-service and was not aggravated by service.
CONCLUSIONS OF LAW
1. The July 1982 rating decision is final. 38 U.S.C. §§ 4004, 4005 (1976) [currently codified at 38 U.S.C. §§ 7104, 7105 (2012)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1981) [currently codified at 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)].
2. The November 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).
3. New and material evidence sufficient to reopen the claims of service connection for a right shoulder disability and a hearing loss disability, has been received since July 1982 and November 2011, respectively, and the claims are reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
4. The criteria for service connection for a right shoulder disability has not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
5. The criteria for service connection for a hearing disability due to aggravation of a pre-existing disability have not been met.  38 U.S.C. §§ 1101, 1131, 1132, 1133, 1137, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1970 to January 1973.  
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995).
When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).  In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991).  Here, both VA and private medical records indicate the Veteran has been employed full time, and he has not asserted that his service-connected disabilities keep him from gaining and maintaining suitable employment.  There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i).  The Board finds that consideration of TDIU and SMC are not inferred by the record, and as such will not be discussed.
Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  
The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).
The Board has reviewed all of the evidence in the Veteran’s claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).
Petition to Reopen
In January 1973, VA received the Veteran’s original claim for entitlement to service connection for, in pertinent part, a right shoulder injury and a hearing loss disability.  The claim was originally denied in April 1973 because there was no evidence at the time of a right shoulder disability and that the Veteran’s claimed hearing loss pre-existed service and had not worsened.  The RO reviewed the Veteran’s available service treatment records (STRs), to include a March 1973 examination, and his statements regarding the disorders.  The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision.  He also did not assert there was clear and unmistakable error in the rating decision.  Therefore, the decision became final.  
The Veteran sought to reopen the claims for a right shoulder disability and a hearing loss disability in July 1982.  The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, private treatment records, and his previous statements regarding his right shoulder and hearing loss during and after service.  The RO denied reopening those claims based on the lack of new and material evidence.  The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision.  He also did not assert there was clear and unmistakable error in the rating decision.  Therefore, that decision became final.
The Veteran again sought to reopen the hearing loss claim in March 2011.  The RO reopened the claim but denied it in a November 2011 rating decision, again for the lack of new and material evidence that would indicate worsening of the hearing during active service.  The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision.  He also did not assert there was clear and unmistakable error in the rating decision.  Therefore, that decision became final.
The Veteran filed to reopen the claims for both the right shoulder disability and the hearing loss disability in July 2015.  The RO reopened the claims but denied them in a November 2015 rating decision.  The Veteran filed a notice of disagreement (NOD) in January 2016.  VA issued a Statement of the Case (SOC) in November 2016.  The Veteran perfected an appeal to the Board in June 2017.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)].
The Board is required to address new and material claims in the first instance.  The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims.  If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted.  Any decision that the AOJ may have made with regard to a new and material claim is irrelevant.  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  Thus, the Board will adjudicate this new and material issue in the first instance.
New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2017).
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim.  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).
Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273, 284 (1996).  The Board considers the last final denial for the right shoulder disability to be the July 1982 rating decision and for the hearing loss disability, the November 2011 rating decision.
For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).
For the right shoulder claim, the evidence of record in July 1982 consisted of service records, including personnel records and separation examination reports, and lay statements from the Veteran.  The evidence of record at that time did not establish a current diagnosis of a right shoulder disability. Since the July 1982 rating decision, the Veteran’s file has additional VA medical records and private orthopedic medical treatment records from August 2015, to include a VA examination provided in October 2015, that have been attached to the claims file.  For the hearing loss claim, the evidence of record in November 2011 consisted of service records, including personnel records and separation examination reports, and lay statements from the Veteran.  The evidence of record at that time did not establish worsening of pre-existing hearing loss. Since the November 2011 rating decision, the Veteran’s file has additional VA medical records and private medical treatment records through 2017, to include a VA examination provided in October 2015, that have been attached to the claims file.  This evidence is not cumulative or redundant of the evidence previously of record, and assuming its credibility for the purpose of the threshold question of whether the claim can be reopened raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a right shoulder disability.
As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for a right shoulder disability and hearing loss disability is warranted.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).  To that extent only, the claims are granted.
Legal Criteria for 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, 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-the so-called “nexus” requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  
Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).
The Court of Appeals for Veterans Claims held that “when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.”  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).
Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).
Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id.
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 
Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record.  See 38 U.S.C. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Evidence and Analysis – Right Shoulder Disability
The Veteran asserts he has a right shoulder disability based on a complaint and treatment for right shoulder pain in September 1971 during his active service.  The Veteran received a VA examination for his shoulder claim in March 1973, but the examiner did not find any residual injury to the right shoulder, and thus considered the September 1971 active service injury as noted to have resolved completely.  As such, the RO denied the claim, and the Veteran did not appeal.
The Veteran sought to reopen the right shoulder claim in July 1982, making the same statement that he had injured his right shoulder while on active duty.  However, the Veteran did not submit any new or material evidence in support of his claim, and the RO denied reopening the right shoulder claim in July 1982.
The Veteran again sought to reopen his right shoulder claim in July 2015.  VA provided an examination of the right shoulder in October 2015.  Here, the examiner diagnosed a rotator cuff tear of the right shoulder area, along with glenohumeral joint osteoarthritis.  The Veteran complained of pain with motion of his shoulder, such that it limited full range of motion of his shoulder.  Range of motion measurements did indicate a limited abnormal range of motion with that shoulder.  A Hawkins’ impingement test was positive, signifying possible rotator cuff tendinopathy or a tear.
This examiner provided a negative opinion for service connection after reviewing the claims file, saying the Veteran’s right shoulder injury was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted the Veteran’s 1971 shoulder injury in the service treatment records that was diagnosed at the time as a cervical outlet syndrome.  A followup treatment note from a military orthopedic clinic in September 1971 noted improving symptoms, free range of motion of the right shoulder, and an otherwise normal examination.  The examiner also noted that upon separation in January 1973 that the Veteran wrote on his report of medical history: “I believe that other than my right knee and my left ear I am in perfect health.”  The initial VA examination in 1973 was deemed normal and that examiner recorded no current disability of the right shoulder at the time.  The October 2015 examiner also noted the Veteran’s current conditions of arthritis and possible rotator cuff tear lack continuity of symptoms with the injury in service based on the objective medical documentation and the Veteran’s own statements at his separation examination in 1973.  The October 2015 examiner explicitly recorded that “the condition of the right shoulder in service does not match nor would it lead to the current condition.”
The Board finds the 2015 VA examination report and opinion to be of great probative value. Indeed, the examiner considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The examiner’s negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005).
The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed right shoulder condition.  However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a right shoulder strain or injury. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Accordingly, his assertions to that effect are of no probative value.
In addition, the Board finds that the gap in time between the Veteran’s last date of active service, in January 1973, to his initial evaluation by any medical provider regarding his right shoulder in March 2015 to be probative of a lack of nexus between the diagnosed current disability and active service.  A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source.  The Board notes the lay statement of the Veteran’ regarding the current state of his right shoulder disability, but he makes no comments regarding the nexus of the shoulder disability back to active service.  The Board also notes that the Veteran declined to mention his right shoulder concerns during his 1973 report of medical history, when he was specific in noting two other unrelated disabilities.
Upon review of the record, the Board concludes that entitlement to service connection for a right shoulder disability is not warranted.  The Board notes a current diagnosis of the right shoulder disability, and thus the requirement for a current disability is shown.  The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted.  However, the separation physical of January 1973 is silent for any existing right shoulder notation or related injury at the time of separation, and, and there is no competent evidence to tie the current assertion to any in-service disease or injury.  The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.
With regard to possible presumptive service connection for degenerative arthritis of the right shoulder noted in the October 2015 VA examination, the weight of evidence shows no chronic symptoms of these conditions during active service, no continuous symptoms of the conditions since service, and that the conditions did not manifest to a compensable degree within one year of service.  As such, presumptive service connection is not warranted.  38 C.F.R. §§ 3.303, 3.309.    
Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed right shoulder disability was not incurred in service.  For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a right shoulder disability on a direct or presumptive basis, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Service Connection for Hearing Loss
The Veteran’s claim for entitlement to service connection for a hearing loss disability requires additional discussion of legal criteria pertaining to the adjudication for his claim because service treatment records indicate that hearing loss was noted at service entrance in 1970.
A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).
Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service).  This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306.  In essence, the Veteran is bringing a claim for service connection for aggravation of his preexisting disorder, when that disorder is noted at service entrance.
Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the 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. §§ 3.304, 3.306(b).  
A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).
Here, the initial burden falls on the Veteran to establish an increase in the severity of the preexisting disability by a preponderance of the evidence standard. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). VA may show a lack of aggravation by establishing with clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added).  See also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012).  
Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease.  Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens.  See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).
Evidence and Analysis -- Hearing Loss Disability
The Veteran asserts that he is entitled to service connection for a hearing loss disability.  Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  
For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  Id.  
The Veteran’s initial April 1973 denial of service connection for a hearing loss disability noted that hearing loss was recorded at the time of enlistment.  As discussed above, because hearing loss was noted and recorded at service entrance, the initial burden is upon the Veteran to establish by a preponderance of the evidence standard that his pre-existing hearing loss worsened during active service.  Pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306. (Emphasis added.) Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the 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. §§ 3.304, 3.306(b).
The Veteran received his pre-induction service physical examination in February 1970, approximately two months prior to actual entry into active service in April 1970.  The Board notes that all audiometric results during the Veteran’s active service were recorded in International Organization for Standardization (ISO) units, which the military used for all audiograms after November 1967 and which is currently used by both VA and the military.
As part of this examination, a service audiogram was performed in February 1970, with the following results:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	15	0	0	--	0
LEFT	80	80	80	--	80

The examiner noted the hearing loss with a brief annotation on the examination form, but otherwise considered the Veteran physically qualified for military service.
During active service, the Veteran received another audiogram in October 1971 to monitor his previously established hearing loss.  The following results were recorded.
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	25	15	5	30	35
LEFT	60	70	70	70	80

The Veteran separated from active service in January 1973 and received his separation examination in June 1973.  The following results were recorded:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	30	20	10	15	15
LEFT	70	80	80	80	80

In the remarks section of the overall examination form, the military examiner noted the hearing loss and also wrote “sensorineural – [no current disability].”  This June 1973 examiner further wrote the Veteran was recommended for a hearing conservation program but was otherwise released to inactive duty at the time.
The Board notes additional audiograms in the Veteran’s active service record with similar results.
As part of his service connection claim for a hearing loss disability, the Veteran received two VA audiograms with opinions for service connection.  The October 2011 VA examiner, a VA audiologist, noted the presence of hearing loss considered disabling and also commented on the possibility of aggravation: “the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.”  This examiner’s rationale was that hearing loss existed at the time of the pre-induction examination, and that the examination conducted at service separation in 1973 indicated “there had been no significant increase in degree of loss over time in service.”  The examiner also noted there were no audiograms or other hearing examinations from the year after service that indicate any increase in hearing loss.
The Veteran received another VA examination for his claimed hearing loss in October 2015.  Current hearing loss was noted for the Veteran, and the examiner opined on the possibility of aggravation in service, saying “the thresholds as presented on the [June 1973 examination] indicated no permanent clinically significant increase compared to thresholds obtained at [the] time of the enlistment exam.”  Continuing, the examiner remarked that hearing loss existed prior to service, but that pre-existing hearing loss was not aggravated beyond normal progression in military service.
The Board finds the 2011 and 2015 VA examination reports and opinions to be of great probative value. Indeed, the examiner considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The examiner’s negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005).
The Board acknowledges that the Veteran is competent to testify as to his beliefs that his hearing disability is related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his hearing condition.  However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of hearing loss. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While he is competent to testify to the persistence of lay-observable symptoms since service, such as decreased hearing acuity, the Veteran is not competent to state that his current hearing loss is causally related to his active duty service, as to do so requires expertise in the field of audiology. Jandreau, 492 F.3d 1372. See 38 C.F.R. §§ 3.303, 3.309.  Accordingly, his assertions to that effect are of no probative value.
The Board finds VA has met the burden of showing that the Veteran’s hearing loss clearly an unmistakably pre-existed service and clearly and unmistakably was not worsened during active service, and the Veteran has not provided the requisite evidence that would overcome that finding. Medical data in the form of audiograms taken at service entrance in 1970 and service exit in 1973 indicate similar threshold shifts for the Veteran’s hearing.  Medical opinions by two different VA audiologists, in 2011 and again in 2015, note that no permanent clinically significant increase at service separation existed when compared to thresholds obtained at the time of the enlistment exam.
Pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306. (Emphasis added.) Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the 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. §§ 3.304, 3.306(b).  Here, the Board finds that no increase in hearing disability during service occurred, and as such, the claim for entitlement to service connection for a hearing loss disability is denied.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).
Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.
REASONS FOR REMAND
Entitlement to an increased initial rating in excess of 10 percent for a right knee disability is remanded.
The Veteran is service connected for his right knee with an evaluation of 10 percent, effective since January 13, 1973.  In his claim for an increased rating, he has asserted that his knee disability has worsened, with greater degrees of stiffness, reduced range of motion, and increasing pain.  The Veteran received VA examinations in May 2011 and again in October 2015, but changes in case law require an additional VA examination to ascertain the current nature and severity of the Veteran’s right knee disability.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
In addition, since the Veteran’s right knee disability was last evaluated, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016).  In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint).  This type of joint testing was not accomplished during the Veteran’s most recent VA examination in October 2015; accordingly, further VA examination is warranted.
When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”).  
The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.”  Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016).   The Board notes from the Veteran’s statements that his knee pain and range of motion have worsened over time since his initial evaluation.   
Additionally, the Court has addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given.  It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.  Id.
The matter is REMANDED for the following action:
1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained.
2. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file.
3. After completion of the above, schedule the Veteran for a VA examination with an appropriate VA medical professional to determine the current nature and severity of his service-connected right knee disability.  The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted.
The examiner should describe the nature and extent of the Veteran’s service-connected right knee disability, to include orthopedic and neurological manifestations.
For the examinations provided for the right knee disability, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for each of the knee joints in question. See Correia v. McDonald, 28 Vet. App. 158 (2016).  The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups.  Any additional loss of motion with repetitive movement must be noted.  
The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups.  The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically.
The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017).  The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means.  An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation.  
If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
A detailed rationale supporting the examiner’s retrospective opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010).
4. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).
 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Setter, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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