Service connection for a right shoulder disability is denied.

Citation Nr: 26001450 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 19-17 549 DATE: January 30, 2026 ORDER Service connection for a right shoulder disability is denied. Service connection for a right knee disability is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's right shoulder and right knee disabilities are not attributable to his active military service, and arthritis of the right shoulder and/or knee was not manifest within one year of separation from service. 2. The Veteran's bilateral hearing loss is not attributable to his active military service, and sensorineural hearing loss was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder and right knee disability are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office. In April 2022, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain chronic diseases, including arthritis and sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 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). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). To briefly address the procedural history of this appeal, the Board denied the claims in an April 2023 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2024 Memorandum Decision, the Court vacated the April 2023 decision and remanded the appeal to the Board. The Court found that the Board provided an inadequate statement of reasons and bases for its credibility finding regarding the in-service incurrence of the disabilities. Specifically, in the April 2023 decision, the Board found the fact that the Veteran sought treatment for other conditions in service, but not the claimed conditions, weighed against the credibility of any assertion that the current disabilities had been present since discharge. As pointed out by the Court, however, the Veteran's service treatment records are limited and do not support that he sought medical treatment for other conditions or injuries in service. The Court thus directed the Board to reconsider its credibility findings and provide an adequate statement of reasons and bases for the determination reached. In May 2025, the Board remanded the appeal for further development. In accordance with the remand directives, the VA Regional Office requested any outstanding service treatment records, invited the Veteran to identify or provide any outstanding post-service medical records, and provided a VA audiological examination. There has thus been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (requiring substantial compliance with Board remand directives). At present, the file contains a limited number of service treatment records. As revealed by the development conducted by the VA Regional Office post-remand, all efforts to obtain additional service treatment records have been exhausted and further attempts in this regard would be futile. In the absence of the full service treatment records, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Service connection for a right shoulder disability is denied. 2. Service connection for a right knee disability is denied. With regard to the right shoulder disability, the United States Court of Appeals for Veterans Claims (Court) has held that that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not accompanied by a medical diagnosis. See Wait v. Wilkie, 33 Vet. App. 8 (2020); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In light of the Veteran's April 2022 hearing testimony in this regard, the Board finds the requirement of a current right shoulder disability is satisfied. With regard to the right knee disability, the Veteran has current osteoarthritis of the right knee, documented in an August 2023 VA x-ray report. At the April 2022 hearing, the Veteran testified that he injured his right shoulder during service due to the general rigors of active duty, including training on the monkey bars, pulling cable, moving the booms on ships, and pulling beams. He similarly reported that his right knee was injured due to the rigors of training, including running, climbing, and playing intermural sports. He testified that he generally did not seek formal medical treatment for his right shoulder or knee during service due to a fear of negative repercussions on his military career. Service treatment records, including entrance and separation examination reports, are silent for complaints, diagnoses, or treatment of a right shoulder or right knee disability. Specifically, on his April 1979 service separation examination report, no abnormalities of the upper or lower extremities were found by the examining physician. On the accompanying Report of Medical History, while reporting having cramps in his legs, the Veteran specifically denied having, or having a history of, a "trick" or locked knee. He similarly denied having, or having a history of, a painful or "trick" shoulder. Further, the Veteran specifically denied having any swollen or painful joints, arthritis, rheumatism, or bursitis, or any bone or joint deformity, either presently or in the past. Post-service treatment records are silent for any complaints, diagnoses, or treatment pertaining to the right shoulder. With regard to the right knee, in October 2022, the Veteran reported increased stiffness and soreness in the right knee, and was treated with physical therapy. He stated that his symptoms were likely due to climbing in and out of his work truck. In December 2023, he again reported that his chronic knee pain was related to getting in and out of his semi-truck, which he drove for a living. He stated that he played a variety of sports in the past, but could not identify a particular injury responsible for his symptoms. Considering the pertinent evidence in light of the governing legal authority, the Board finds the evidence is persuasively against the claims. The probative evidence does not show that the current right shoulder or right knee disability is related to active military service or that a chronic disability was incurred in service. Right shoulder and/or knee disabilities, including arthritis, were not found within one year of separation from active duty in June 1979. The Board does not afford the Veteran's recent assertions of ongoing right shoulder and knee disabilities since military discharge any significant probative weight. With regard to both disabilities, although he has recently reported that the disabilities began in service, the examining physician at service separation found no pertinent abnormalities of either the upper or lower extremities. Further, the Veteran explicitly denied having past or present right knee or shoulder symptoms at the time of his military discharge examination, including swollen joints, painful joints, a "trick" joint, arthritis, rheumatism, bursitis, or a bone or joint deformity. While the Veteran testified to "negative repercussions" to his military career if he was to report any ongoing right shoulder and right knee symptoms, he did not explain what any possible repercussions would be at time of his exit from military service. Per his service personnel records, his term of service had expired and he was not eligible for re-enlistment. Thus, when asked to describe any current or past history of symptoms pertaining to the knee or joints, either he was lying when he said he had none or being honest that none were present. Given that he did not withhold reporting other then-present medical issues involving chronic colds and pain in his chest, the Board finds that he was likely being truthful. Additionally, with regard to the right shoulder disability, the post-service evidence does not reflect a single complaint, diagnosis, or episode of treatment related to the right shoulder since military discharge. Id. The fact that the Veteran sought treatment for other conditions after service, but not a right shoulder disability, is a factor that the Board considered when determining whether the condition has persisted since discharge. The claims file contains post-service treatment records dating back to 2022 documenting other orthopedic complaints, without mention of a right shoulder disability. Because he described other complaints and provided overall assessments of his health and functioning to his general practitioners, without mention of right shoulder disability, it is reasonable to conclude that none was present. To the extent the Veteran testified at the April 2022 hearing that he has received post-service private medical treatment, the Board remanded for this development in August 2025, and the Veteran was thereafter invited to identify or provide such evidence. He failed to respond in any way. VA's duty to assist in the development of a claim is not a one-way street and claimants cannot passively wait for it in those circumstances where they may or should have information that is essential to establishing their claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board may not go beyond the factual evidence presented to provide a favorable determination. Rather, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). With regard to the right knee disability, the Veteran's statements are internally inconsistent as he has alternatively reported that his symptoms were caused by the rigors of military service and those of his post-service occupation as a truck driver. See Madden v. Gober, 125 F.3d 1477, 1481 (the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). To the extent the latter reports were made in the course of seeking medical treatment, under the persuasive Federal Rules of Evidence such statements would indicate exceptional trustworthiness. See Fed. R. Evid. 803(4); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"). A VA medical opinion has not been obtained to address the etiology of these disabilities. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Here, the Board finds that there is no indication, other than the general lay assertions of service connection, of an association between the right shoulder and knee disabilities and service. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as these. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Moreover, as noted above, the inconsistent nature of his reports regarding the onset of right shoulder and knee symptomatology renders his reports unreliable for purposes of determining the inception of the conditions or of their relationship, if any, to service. His statements alone are thus insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection as to these disabilities. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs persuasively against the claims, that doctrine is not applicable. 3. Service connection for bilateral hearing loss is denied. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has current bilateral hearing loss for VA purposes, documented on VA examination in February 2018. At the April 2022 hearing, he testified that his current hearing loss was caused by his exposure to hazardous noise in service. Specifically, he testified that he was exposed to hazardous noise while loading military equipment onto ships with constant gasoline/diesel engine noise, as well as noise from cable and pulley systems. He reported that he was not provided any hearing protection in the performance of these duties. Service treatment records, including entrance and separation examination reports, are silent for complaints, diagnoses, or treatment of hearing loss for VA purposes. Specifically, audiometric data obtained on his April 1979 service separation examination depicted normal hearing for VA purposes, and the Veteran rendered no pertinent complains on the accompanying Report of Medical History. On the matter of the etiology of the disability, the record contains the opinion of a February 2018 VA examiner, who additionally authored an addendum opinion in June 2020, as well as the opinion of a September 2025 VA examiner. On VA examination in February 2018, the examiner reviewed the claims file and examined the Veteran. She noted the Veteran's reports of exposure to hazardous noise during service due to small arms fire, jet engines, explosives, artillery, and industrial equipment without the benefit of hearing protection, as well as his lack of noise exposure both prior to and after service. She opined, however, that it is not at least as likely as not that the current hearing loss was caused by or a result of military service. Audiometric data obtained on entry and separation from service did not depict a positive threshold shift in hearing acuity. Further, despite his exposure to hazardous noise in the course of his military duties, the Veteran's hearing was normal for VA purposes on his April 1979 service separation examination. In the June 2020 addendum opinion, the February 2018 VA examiner further explained that the configuration of the Veteran's current hearing loss was more consistent with presbycusis than with noise exposure. Based on medical research and the Veteran's audiometric data, she again concluded that his bilateral hearing loss is less likely than not due to military noise exposure. On VA examination in September 2025, the examiner opined that the Veteran's current bilateral hearing loss was not at least as likely as not caused by or a result of military service, to include noise exposure therein. The examiner noted that while the Veteran was exposed to hazardous noise, the evidence did not support the incurrence of associated auditory damage. Citing medical literature in support, the examiner explained that pure-tone audiometry testing is the standard by which to objectively measure permanent auditory damage. The Veteran's audiometric data does not depict any standard threshold shifts during active duty, defined as a change of 15 decibels or more at any frequency between 500 and 6000 Hertz from baseline levels. The examiner opined that given the lack of any significant threshold shifts and the post-service onset of bilateral hearing loss, a nexus was not supported. Considering the pertinent evidence in light of the governing legal authority, the Board finds the evidence is persuasively against claim. The probative evidence does not show that the bilateral hearing loss is related to active military service, or that a chronic disability was incurred in service. The Veteran was clearly exposed to acoustic trauma in service. However, the evidence does not show that hearing loss was then-present, or that the disability has been continuous since service. Bilateral sensorineural hearing loss was not found on the service separation examination or within one year of separation from service. The medical opinion evidence is also persuasive. The VA examiners noted the service treatment records and addressed the contentions of direct service connection, but opined that the Veteran's current disability is not related to military service, including the noise exposure therein. The examiners based their conclusions on an examination of pertinent records in the claims file, including the post-service treatment records and diagnostic reports, and medical literature. They reviewed the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. See Bishop v. McDonough, No. 23-3154, 2024 U.S. App. Vet. Claims LEXIS 884 (Vet. App. June 11, 2024) (holding that an examiner's finding that the auditory thresholds at separation from service do not indicate a permanent significant shift in hearing thresholds during service or any permanent auditory damage may establish a sufficient rationale for a negative nexus opinion); see also Bethea v. Derwinski, 252, 254 (1992) (holding that a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains.) To the extent the Board previously found inadequacies with aspects of the earlier VA examination reports, those examination reports are not inadequate as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains.") Moreover, the decision here does not rest exclusively on those portions previously deemed inadequate. The Board has additionally relied on examination reports that have not been formerly characterized as inadequate, to include the September 2025 VA medical opinion. The only evidence to the contrary of the VA examiner's opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as sensorineural hearing loss. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). (Continued on the next page) ? The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs persuasively against the claim, that doctrine is not applicable. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.