Citation Nr: 1333823	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  06-31 510A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio

THE ISSUES

1.  Entitlement to service connection for glomerulonephritis, to include as secondary to a service-connected right knee disability. 

2.  Entitlement to service connection for hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to a higher initial rating in excess of 10 percent for service-connected patellar chondromalacia of the right knee.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran served on active duty from April 1989 to April 1993. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the VA RO in Cleveland, Ohio.

An appeal to the Board consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal (VA Form 9 or equivalent).  38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2013).  

In a November 2005 rating decision, the RO granted service connection and a 0 percent rating for a right knee disability (then characterized as patellar tilt, with patellar subluxation of the right knee) effective March 3, 2005.  The Veteran was notified of this decision by a letter dated November 29, 2005, and an NOD was received from the Veteran in March 2006, only as to the issue of entitlement to a higher rating for the right knee disability.  In October 2006, a letter was received from the Veteran in which she contended that an earlier effective date in April 1993 (the date of her separation from service) should be assigned for the award of service connection for a right knee disability.  In November 2012, the Board construed this as a timely NOD as to the effective date of service connection assigned in the November 2005 rating decision.  See 38 C.F.R. § 20.302.  Thus, the Veteran perfected appeals as to both issues (entitlement to a higher initial rating for the right knee disability, and entitlement to an effective date prior to March 3, 2005 for the grant of service connection for the right knee disability).  38 U.S.C.A. § 7105; 38 C.F.R. § 20.200, 20.302. 

In an April 2006 rating decision, the RO granted a higher 10 percent rating for the right knee disability, effective January 11, 2006.  In an August 2006 decision, a Decision Review Officer (DRO) of the RO assigned an earlier effective date of March 3, 2005 (the date service connection was established), for the 10 percent rating.  Thus, the right knee disability has been rated as 10 percent disabling throughout the rating period on appeal.  The DRO also recharacterized the disability as patellar chondromalacia of the right knee.  

In a September 2008 rating decision, the RO denied service connection for glomerulonephritis, and the Veteran perfected an appeal of this decision.  

In an October 2009 rating decision, the RO granted service connection and 10 percent ratings for right and left trochanteric bursitis (a hip disability), each effective October 6, 2008, granted service connection and a noncompensable rating for degenerative disc disease (DDD) of the lumbar spine, and denied service connection for hearing loss and tinnitus.  The Veteran filed an NOD with the October 2009 decision, but only as to the issues of service connection for hearing loss and tinnitus, and of entitlement to earlier effective dates for the grant of service connection for right and left hip disabilities.  In September 2010, the RO issued an SOC for these claims; however, the Veteran did not file an NOD as to any of the other determinations, and thus those issues are not in appellate status.  38 C.F.R. § 20.201; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (an appellant must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from the initial claim for service connection).  

In an October 2010 VA Form 9 (substantive appeal), the Veteran indicated that she had read the SOC, and that she only wished to appeal the issue of service connection for tinnitus.  On the October 2010 VA Form 9, the Veteran did not specifically state that she was appealing for an earlier effective date for her bilateral trochanteric bursitis or for service connection for hearing loss, and did not check the box indicating she was appealing all of the issues listed on the statement of the case.  

Nevertheless, in November 2012, the Board found that the issues of service connection for hearing loss and entitlement to earlier effective dates for the grant of service connection for right and left trochanteric bursitis properly in appellate status and would, thus, be adjudicated in accordance with the holding of the United States Court of Appeals for Veterans Claims (Court) in Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

In a November 2010 rating decision, the RO granted an earlier effective date of March 1, 2007 for the award of service connection for right trochanteric bursitis.  Although an earlier effective date had been awarded for this disability, that issue remained on appeal as the Veteran averred that an even earlier effective date should be assigned.

A November 2012 Board decision denied effective dates prior to March 3, 2005, for service connection for patellar chondromalacia of the right knee; prior to March 1, 2007 for service connection for right trochanteric bursitis; prior to October 6, 2008, for service connection for left trochanteric bursitis.  The issues of entitlement of service connection for glomerulonephritis, hearing loss, and tinnitus as well as a higher initial rating for a right knee disability were REMANDED for additional development.  

The case has been returned to the Board.  


FINDINGS OF FACT

1.  Glomerulonephritis is first shown many years after military service and is not related to her period of military service or any incident thereof, including acute urinary tract infections (UTIs), and is not caused or aggravated by a service-connected disability or medication taken for a service-connected disability.  

2.  Loss of hearing in either ear, by VA standards, is not shown at any time during or after the Veteran's active military service. 

3.  The Veteran's tinnitus first manifested many years after service, and is not shown to result from an event during active service. 

4.  The Veteran's chondromalacia of the right knee is manifested by essentially full but painful motion with patella subluxation which is not more than mild in degree; there is no locking, instability or meniscal injury.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for glomerulonephritis, claimed as secondary to a service-connected right knee disability, are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).   

2.  The criteria for service connection for hearing loss are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).   

3.  The criteria for service connection for tinnitus are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).   

4.  The criteria for an initial rating in excess of 10 percent for chondromalacia of the right knee under Diagnostic Code (DC) 5014 are not met, but the criteria for a separate 10 percent rating for slight subluxation under DC 5257 are met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, DCs 5014 - 5261 (2013).   



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

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.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  	

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

Regarding the service connection claims adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, an RO letter was sent to the Veteran in May 2008 as to the claim for service connection for glomerulonephritis, and in May 2009 as to the claims for service connection for hearing loss and tinnitus.  Each letter advised the Veteran of the evidence and information necessary to substantiate her service connection claims on a direct and secondary basis as well as her and VA's respective responsibilities in obtaining such evidence and information, and of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  And this was prior to the September 2008 adjudication of the claim for glomerulonephritis and the October 2009 adjudication of the claims for hearing loss and tinnitus.  

Here, the Veteran was provided appropriate VCAA notice of what was required to substantiate her claims for service connection for her now service-connected right knee disability, by RO letter in March 2005, prior to the initial adjudication, and grant of service connection by the November 2005 RO rating decision.  This appeal arises, in part, from the Veteran's disagreement, by filing her NOD with the initial rating assigned upon granting service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for her right knee disability was granted and initial ratings were assigned.  Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case. 

Next, VA has a duty to assist the Veteran in the development of the claims.  This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

In this case, VA has associated with the claims file copies of the Veteran's service treatment records (STRs) which she provided.  A July 2005 RO Memorandum reflects that the original STRs were not available and that the Veteran was made aware of this.  In response, she had sent copies of her STRs given to her before leaving active duty.  However, these records did not include the report of the examination for service separation.  

Also, in part pursuant to the Board remands, VA treatment records are on file or available through the Virtual VA paperless claims system.  She declined the opportunity to testify in support of her claims.  

In this regard, the case was remanded in November 2012, in part, in order to provide the Veteran an opportunity to identify all current treatment for his disorders, which was accomplished in a January 2013 letter.  However, she has not identified any additional records of post-service treatment for the disabilities addressed herein.  Rather, in February 2013, she responded that she had no additional evidence to submit which had not already been submitted.  

In light of the in-service indications of a urinary tract infection (UTI) and the Veteran's lay statements regarding recurrent blood in her urine, the case was remanded in November 2012 to provide the Veteran with a VA examination to determine the origin and etiology of her claimed glomerulonephritis.  Because she alleged that she was subjected to noise exposure during service, she was also to be examined as to the nature and origin of her claimed hearing loss and tinnitus.   38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In addition, she was to be afforded a VA examination to obtain up-to-date clinical findings in the evaluation of her service-connected right knee disability.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991); See also VAOPGCPREC 11-95 (April 7, 1995).  

The Veteran was scheduled for the requested VA examinations in February 2013 but she did not attend the examinations.  She was then contacted and a VA Form 21-0820, Report of General Information, dated February 23, 2013, reflects that she indicated that she did not want her examinations rescheduled.  

A claimant must report for VA examination when deemed necessary to substantiate a claim.  38 C.F.R. § 3.326(a).  When a claimant fails to report for VA examination on an original claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.366(a).  Here, the Veteran has refused further examination and she must assume the risks that her failure to cooperate may result in insufficient evidence to substantiate her claim.  See Turk v. Peake, 21 Vet. App. 565, 567 (2008).  Thus, absent her cooperation, VA has no further duty to provide examination and opinion in these claims.

As such, the Board finds substantial compliance with the Board's prior remand directives by providing the Veteran an opportunity to identify any pertinent treatment records, providing her an opportunity for VA examination and readjudicating the claims.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  In sum, VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claims.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Background

The Veteran served on active duty from April 1989 to April 1993.  She had a military occupational specialty (MOS) as a secure communications systems maintenance specialist.  

On examination for enlistment in March 1989, the Veteran had normal hearing levels, bilaterally, and that examination was negative for renal pathology and tinnitus.  The audiological evaluation found that her pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
5
0
LEFT
0
0
5
5
0

STRs show that the Veteran was treated for UTIs on two occasions during service.  She was treated for a UTI beginning on January 17, 1992 but the infection resolved by February 18, 1989.  She was treated for another UTI beginning on August 24, 1992; and by September 8, 1992, she was feeling better.  For each infection, she was prescribed antibiotics.  A separation examination is not of record. 

Private clinical records show that the Veteran had a UTI in July and August 1998 and that, in August 1998, the assessment was nephritis for which she was given steroids.  

On July 13, 1998, the Veteran was seen by Dr. Estes for isolated microhematuria.  No significant abnormalities were found and the plan was observation.  It was felt that she might have nephritis.  She was referred to her regular doctor, Dr. Thomas, for a yearly blood pressure check.  In August 1998, she felt better since being put on Prednisone.  A renal biopsy had revealed focal necrotizing glomerulonephritis.  

Dr. Thomas reported in January 1999 that the Veteran had had blood in her urine in January and she returned in July with what seemed to be a UTI, but when seen again in August she was still having hematuria.  

Dr. Cohen reported in November 2000 that the Veteran had a complicated history related to a diagnosis of rapidly progressive glomerulonephritis which was diagnosed in 1998.  

Private MRIs of the Veteran's right knee in April 2005 were performed.  The first revealed findings that were uncertain as to a meniscal tear and the impression was slight lateral patellar subluxation with lateral patellar tilt but no ligamentous derangement.  The second, later that month, yielded findings that likely represented intrasubstance degeneration of the lateral meniscus.  On a private evaluation in May 2005 it was reported that she had pain, episodically, and problems going up and down stairs.  She also had patellar tilt and symptoms consistent with patellofemoral pain syndrome.  Recent MRIs had ruled out meniscal pathology.  On examination she had full and unrestricted range of motion and no evidence of gross instability or mal-tracking.  She had, by X-rays, slight patellar tilt but had negative apprehension test.  From her imaging it appeared she had no ligament pathology or meniscal tear.  She was instructed in home based care, including exercises, for her right knee.  

In a May 2005 statement, the Veteran's husband reported that she had used a sports' knee brace when jogging or walking.  Her knee continued to give out, causing her to fall.  In 2004, her knee had begun to make a popping noise when walking up stairs, and when standing up or sitting down.  She complained of pain after walking, and she also had stiffness of the right knee.  

On VA examination in September 2005, the Veteran's claim file was available to the examiner.  Her in-service treatment was reported and it was noted that she had been informed by a private physician that, after MRIs, there was no evidence of meniscal tear and that a knee brace would be needed if she did not respond to physical therapy.  The Veteran described a history of installing cryptographic equipment during service but that she currently worked as a contract coordinator.  She reported now having valgus-type inward unintentional motion of the right knee, particularly when she tried to run or jog, after her initial in-service injury and since then.  She used an over-the-counter (OTC) neoprene-type knee sleeve when jogging to minimize instability from a valgus give-way pattern.  However, she had quit jogging in 1994, at which time she stopped using the neoprene sleeve.  She had now experienced peripatellar discomfort for the last 18 months, for which she was evaluated by a private orthopedist and who had found that she did not have a meniscal tear but had patellar malalignment which was best treated by physical therapy.  Since May or June 2005 she had been in 5 to 6 physical therapy regimens which were geared to strengthening her quadriceps.  She had not completed the regimens but the therapy precipitated increased right knee discomfort.  She had been told that if there was no improvement, a special brace would be needed.  

The Veteran complained of daily diffuse but not constant, transient peripatellar discomfort mostly located at the medial peripatellar area.  This was particularly noticeable when going up stairs and after walking.  For exercise, she walked 1/2 mile per week.  Historically, she had valgus-type right knee give-way weakness when running and, so, she no longer ran.  She reported having right knee give-way weakness 1 to 2 times in the past 12 months.  She also complained of painful popping when going up stairs, which would last for about 2 minutes.  The right knee transient discomfort, when present, averaged at 3 on a scale of 10.  She denied stiffness upon awakening but had transient stiffness after sitting for about 1 hour or longer.  This dissipated after walking for several minutes.  She denied having soft tissue swelling, erythema, increased warmth, locking, fatigability or lack of endurance.  She also denied having a history of any flare-ups.  She also denied having any episodes of overt right knee subluxations or dislocations.  She had not received any injections in to the right knee or having had surgery.  She stated she had been told not to take anti-inflammatory medication because of her diagnosed glomerulonephritis.  She did not wear any brace or use any assistive device to ambulate.  She believed that her right knee disability had not historically interfered with her occupation, and it had not caused her to miss any work.  Her transient symptoms did not interfere with her activities of daily living and the only limitation posed was to preclude running.  

On physical examination the Veteran did not have an antalgic gait and did not use an assistive device to ambulate.  She had symmetrical wear pattern on her shoes.  It was difficult for the examiner to assess her thigh musculature due to overlying adipose tissue but the right thigh was 1 centimeter (cm.) greater in circumference than the left but the left calf was 1 cm. greater in circumference than the right.  There was no varus or valgus deformity of either knee and the examiner did not find any gross malalignment as to the patellae.  There were no surgical scars or soft tissue deformities and no joint effusion.  Circumferential knee measurements were equal and there was no erythema or increased warmth.  The entire right knee was non-tender to palpation.  There was no pathologically increased anterior or posterior ligamentous laxity.  When flexed to 30 degrees, there was no pathologically increased medial or lateral right knee laxity.  McMurray's sign was negative.  She had 130 degrees of nonpainful right knee flexion, which could be increased passively and non- painfully to 140 degrees.  There was complete normal and non-painful extension to 0 degrees.  There was no crepitance throughout flexion or extension but there was audible popping when she stepped onto a platform which was about 15 inches above the floor; and which was not present in the asymptomatic left knee.  There was great strength, at 5/5, on right knee motion.  Repetitive motions of the knee, over 60 seconds, were not associated with increased pain, incoordination, decreased strength or decreased range of motion but there was some fatigability.  There was no leg length discrepancy.  X-rays were normal.  The diagnoses were past right knee strain; right patellar tilt (malalignment) with partial subluxation by MRI; and transient activity-related right knee arthralgia, secondary to the aforementioned.  

A January 2006 VA outpatient treatment (VAOPT) record reflects that the Veteran reported that her right knee pain had worsened over the past year.  She was able to walk without an antalgic gait and there was no right knee effusion.  Right knee motion was 0 degrees of extension and 120 degrees of flexion.  She had pain over the medial joint line and pain with McMurray's maneuver.  She had no lateral joint line pain and her ligaments were stable.  She definitely had a valgus position of her lower extremities.  The assessment was right knee pain, with possible meniscal tear.  An MRI was planned to rule out a right knee menisceal tear.  It was possibly that she had patellofemoral complaint, but it was felt, based on the examination, that she more likely had menisceal pathology.  

A February 2006 VAOPT record indicates that the Veteran had a 5 to 7 degree valgus deformity of the right knee, compatible with a history of patella subluxation, although X-rays showed a normal relationship and an MRI showed a lateral facet chondromalacia.  She was not interested in surgery but would try a knee sleeve.  She was "to check with renal about intermittent use of ASA."  She was given a right knee sleeve, which was replaced in May 2006.  

In the Veteran's March 2006 NOD she reported that physicians had recommended right knee surgery to realign and straighten that knee; however, for now she was trying to use a knee brace.  

In a letter submitted with the Veteran's VA Form 9 of October 2006, she reported that since June 2006 she had had stiffness and pain after sitting at work, driving car, climbing stairs, kneeling in right knee.  She requested a 30 percent rating for that knee.  

On VA examination in July 2007 of the Veteran's right hip she reported that she had stopped wearing a right knee brace 3 to 4 months ago.  She was able to walk more than 1/4 mile but less than 1 mile.  She could stand for 15 to 30 minutes.  She did not need an ambulatory aid.  Her gait was normal.  

On VA examination of the Veteran's right knee in October 2007 the claim file was not available to the examiner.  The Veteran brought an August 2007 clinical note from Dr. W. which indicated that she had a normal right knee X-ray and normal knees by examination, bilaterally.  It was noted that a January 2006 MRI revealed chondromalacia patella of the lateral facet of the right knee with normal ligaments, menisci.  She had not had recent right knee treatment.  She believed that she had right knee arthritis with popping, cracking, crunching, pain and stiffness.  Her course had been intermittent with remissions.  Currently, she limited her activity.  She reported that she had glomerulonephritis and was unable to take nonsteroidal anti-inflammatory drugs (NSAIDs) or acetaminophen.  She reported having had kidney infections during service, with hematuria.  She reported that the hematuria recurred after service and eventually a renal biopsy at Bethesda North, in Cincinnati resulted in a diagnosis of glomerulonephritis.  She had stopped wearing her right knee sleeve because she felt it was related to her hip pain.  The Veteran did not need an ambulatory assistive device and had no constitutional symptom of or incapacitating episodes of arthritis.  She could stand for up to one hour and was able to walk 1/4 mile.  

The Veteran reported having a deformity of both knees.  She reported having had right knee giving way and instability.  She reported having had right knee pain, stiffness, cracking, crunching, and swelling but no weakness.  She reported having episodes of right knee subluxation 1 to 2 times yearly.  She had no episodes of locking or effusion.  She had no flare-ups of joint disease and no inflammation.  

On physical examination the Veteran's gait was normal and there was no evidence of abnormal weight bearing.  Active right knee flexion against gravity, and passive range of motion as well as range of motion against strong resistance, was from 0 degrees to 130 degrees, with pain at 130 degrees.  There was no additional limitation of motion on repetitive use.  She had crepitus and painful motion as well as right knee bumps consistent with Osgood-Schlatter's disease.  She had grinding of the right knee but no clicks or snaps.  There was no instability.  She had mild sub-patellar crepitus with normal patellar tracking.  There was no meniscus abnormality.  She had a valgus deformity of each knee of 3 degrees but was able to hell, toe, and tandem walk as well as stand independently on each lower extremity.  She could fully squat, but with pain.  She declined to have additional X-rays taken.  

The examiner stated that the Veteran possibly had right knee arthritis but this had not been documented by X-ray or MRI; however, she had right knee chondromalacia patella.  There were no significant effects on her occupational activities.  There was no effect as to her toileting, feeding or grooming.  There was only a mild effect as to performing chores, shopping, recreation, traveling, bathing, and dressing.  There was only a moderate effect as to her exercising and participation in sports.  Also, she reported having right knee stiffness when sitting down at her job.  The examiner opined that the Veteran did not now have right knee arthritis.  

In October 2007, the Veteran claimed service connection for glomerulonephritis as due to continued use of Motrin after an in-service knee injury, followed by in-service urinary problems.  

In August 2008, the Veteran submitted pictures of her shoes demonstrating an uneven wear pattern on her right shoe.

The Veteran has submitted an article from the Internet which indicates that a number of different diseases could result in glomerular disease.  It could be a direct result of an infection or a drug toxic to the kidneys, or it could result from a disease that affected the entire body, e.g., diabetes or lupus.  Another Internet article indicates that some medications were toxic to the kidneys, including NSAIDs like ibuprofen and naproxen.  Yet another article, from WebMD, indicates that medications such as ibuprofen could cause acute renal failure.  

A January 2009 private hearing evaluation conducted at the University of Cincinnati Medical Center reflects that the Veteran complained of tinnitus.  There was a diagnosis of the Veteran's hearing being within normal limits, and then sloping to a mild loss at 8000 hertz.  She had excellent word recognition scores.  The audiological evaluation found that her pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
5
10
15
LEFT
0
05
5
10
15

Speech reception threshold was 5 decibels in each ear and discrimination ability was 100 percent in the right ear and 96 percent in the left ear.  

On VA examination in September 2009 of the Veteran's back, her posture and gait were normal.  She worked full time as a computer analyst and had not lost any time from work in the past year.  

In December 2009, the Veteran reported that her MOS during service caused her to be around acoustic trauma from drills, saws, and working in areas where aircraft were nearby. 

Subsequently submitted service personnel records indicate that the Veteran's MOS involved not only installation of ducts, conduits, and equipment racks but also cable for various pieces of equipment.  

In May 2013, the Board requested an expert medical opinion from VA medical personnel as to whether it was at least as likely as not that the Veteran had a chronic kidney or urinary disability (claimed as glomerulonephritis) that (1) was related to her military service; (2) was caused by her service-connected right knee disability (including pain medication taken for that disability); or (3) had been permanently aggravated beyond normal progression of the disorder by her service-connected right knee disability (including pain medication taken for that disability).  It was requested that in providing the opinion the following matters should be addressed: (1) that the separation examination was missing through no fault of the Veteran; (2) the significance, if any, of the Veteran being treated for UTIs in service and/or taking NSAIDS (non-steroidal anti-inflammatory drugs) and acetaminophen for her service-connected right knee disability upon any currently diagnosed kidney condition; and (3) whether there was any medical reason to accept or reject the Veteran's report that she began to have kidney infections with hematuria during service which demonstrated the onset of glomerulonephritis.  

The opinion obtained stated that:

The review of her service records showed no evidence of glomerulonephritis, any chronic kidney or genitourinary condition while on active duty (1989-1993).

The patient was treated with antibiotics-Bactrim followed up by Macrobid - for symptomatic urinary tract infection in January 1992 that resolved by February 1992.  She sustained another symptomatic urinary tract infection in August 1992 that resolved after antibiotics were given as well-initially Bactrim but since she developed a rash it was switched to Amoxilicin.

Private medical records shows that the patient was evaluated by urology, Dr. [] , in May 1997 with asymptomatic microscopic hematuria, without proteinuria.  Her blood pressure was 112/72 and physical examination unremarkable.  It is mentioned in the note that the IVP [intravenous pyelogram] was normal and subsequent [sic] she underwent cystoscopy with negative results, therefore she was told to come back in one year.  

On July 1998, [sic] she was evaluated by DR. [] at the Kidney and Hypertension Center in Ohio, referred by Urologist, for isolated microhematuria.  The plan of care was observation and follow up with Dr. [] for a yearly blood pressure check.  If significant proteinuria or elevation of creatinine she would have been reevaluated for biopsy.  

On 7/27/1998, she presented with dysuria and with dark urine color, for which Bactrim was given for 3 days to treat her urinary tract infection, at Dr. [] office.  In her following note 8/4/1998 "she was still feeling ill after finishing treatment with Ciprofloxacin but better urinary tract wise" and there were no longer macrohematuria.  

As per Dr. [] note from 1999: her renal profile in January 1998 was normal.  The repeat renal panel in August 1997 after treatment of urinary tract infection showed creatinine of 2.6 mg/dl, therefore she was sent back to Dr. [] who did a biopsy of the kidney which showed focal segmental necrotizing glomerulonephritis.  She was started on Prednisone and her renal function returned to normal with a creatinine of 0.8 ml/dl on December 1998.  

The Biopsy report lacked H&E staining and in another Dr. [] note from 8/17/1990, it is detailed that only one focal glomerulus have [sic] glomerulonephritis.  No specific etiology of this condition was identified.  

She became pregnant and delivered healthy daughters in June 1999 and March 2000.  There were no complications during her pregnancies. 

She continued to have episodes of urinary tract infections (end of August 1998, September and October 2000, May 2001) and microhematuria and her kidney function is normal with a creatinine of 0.9 mg/dl.  

It is mentioned since then that due to her history of glomerulonephritis she cannot take non steroid analgesics drugs (NSAIDs)  

The opinion stated that the medical evidence did not show that the condition was either caused by or began during her time of military service.  It was stated that:

As per BOARD request, here are the specific answers: 

1.  It is not likely that the patient has glomerulonephritis related to her military service; 

2.  Glomerulonephritis was not caused by her service-connected right knee disability (including pain medication taken for that disability) OR

3.  has been permanently aggravated beyond the normal progress of the disorder by her service-connected right knee disability (including pain medication taken for that disability).

4.  The patient's separation examination is missing through no fault of the Veteran.

5.  There is no significance in the patient's treatment for symptomatic urinary tract infection in service and/or taking any NSAIDs and acetaminophen for her service-connected right knee disability upon any current diagnosed kidney condition.  

1. 2. 3. and 5: The patient sustained two episodes of symptomatic urinary tract infections during duty and developed glomerulonephritis 5 years after that.  The patient contended that this condition was secondary to ibuprofen use, including Motrin, for treatment of her service-connected right knee condition.  However, there is no medical evidence to support her case.  

NSAIDS associated with kidney disease have persistent sterile pyuria, microhematuria and the biopsy revealed interstitial disease; in rare cases where the glomerulus are involved, the pathology showed minimal change disease.  

6.  There is no correlation between her symptomatic urinary tract infections during service which can demonstrate the onset of glomerulonephritis.  She received antibiotic treatment with improvement of symptoms and after the first urinary tract infection, a follow up urinalysis showed resolution of microhematuria despite persistent with minimal symptoms.  

Principles of Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). 

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  However, not every manifestation of urinary findings of casts during service will permit service connection for nephritis first shown as a clear-cut clinical entity at some later date.  38 C.F.R. § 3.303(b).

Certain conditions, such as nephritis or calculi of the kidney or an organic disease of the nervous system, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  The Board deems sensorineural hearing loss and tinnitus as organic diseases of the nervous system.  See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system).  See also 67 Fed. Reg. 59033-01 (Sept. 19, 2002); 68 Fed. Reg. 25822-01 (May 14, 2003) (describing tinnitus as a phantom sensation arising from the brain which is comparable to a central nervous condition).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id. 

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")

Notably, the Walker decision appeared to operate on the assumption that sensorineural hearing loss was not considered a "chronic" disease for purposes of 38 C.F.R. § 3.303(b).  This case did not contain any discussion as to whether sensorineural hearing loss came within the definition of an organic disease of the nervous system which is listed as a chronic disease for purposes of 38 C.F.R. § 3.309(a). 

VA has a policy that sensorineural hearing loss is deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a).  See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010).  See also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system).  As the Walker case did not expressly address this issue, the Board will deem sensorineural hearing loss as a "chronic" disease for purposes of this decision.

Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition.  38 C.F.R. § 3.310(a) and (b).  This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  

Effective October 10, 2006; prior to receipt of the October 2007 claim for service connection for glomerulonephritis, the provisions of 38 C.F.R. § 3.310 were amended to state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability.  38 C.F.R. § 3.310(b).  Although the stated intent of the change was merely to implement the requirements of Allen, supra, the Board finds that the new provisions amount to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995, because the amended version requires the establishment of a baseline level of disability before an award of secondary service connection may granted.  See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003).

Veteran status is the first element required for a claim for disability benefits.  D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2).  The term "active duty" includes full-time duty in the Armed Forces, other than ACDUTRA.  38 U.S.C.A. § 101(21).  The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof.  38 U.S.C.A. § 101(10).

Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes.  38 C.F.R. § 3.6(c)(1).

Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA.  Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203, limiting the type of evidence accepted to verify service dates.

A service department finding that an injury occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA.  38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993).

The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA or INACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service.  Id.  See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA.  Smith, 24 Vet. App. at 47.  In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone.  Id.

With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA.  Smith, 24 Vet. App. at 48. 

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

Here, the Veteran's STRs are incomplete.  In such a situation, VA has a heightened obligation to "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision."  Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996).  See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).

However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing STRs.  See Cromer, 19 Vet. App. at 217-18 (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown).

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology.

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R. § 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R. § 3.159(a)(2).

Glomerulonephritis

The Veteran contends that glomerulonephritis was either incurred in service, as initially manifested by UTIs at that time, or is secondary to pain medication taken for her service-connected right knee disability.  

Although the Veteran twice had UTIs during active service, there is no contemporaneous or postservice clinical evidence that such UTIs were anything other than acute and transitory.  She was first formally diagnosed with glomerulonephritis in 1998, which is approximately 5 years after service discharge.

The Board finds that the most probative and persuasive evidence in this case is the recently obtained VHA opinion.  This examiner, upon close review of the Veteran's report of symptomatology in conjunction with the clinic and laboratory findings, found no evidence that glomerulonephritis or any chronic kidney/genitourinary condition first manifested in service.  It was explained that there was no significance to the Veteran's treatment for UTIs in service as anti-biotic treatment resolved her microhematuria.  It was further explained that her use of NSAIDs for service-connected disability also had no significance as she did not manifest the features associated with NSAID-induced kidney disease.  Overall, this opinion weighs heavily against this claim.

On the other hand, the Veteran has offered her own opinion on the nature and etiology of her glomerulonephritis.  She contends that her in-service symptoms were in fact a manifestation of glomerulonephritis and/or her use of NSAIDs caused or aggravated her glomerulonephritis.  Overall, the Board places greater probative weight on the opinion of the VHA specialist who has much greater training and expertise than the Veteran in identifying the onset, nature and etiology of glomerulonephritis.

The Veteran has also stated that physicians have informed her not to take anti-inflammatory medications because of her glomerulonephritis and suggests, apparently from this, that private physicians have opined that anti-inflammatory medications which she has taken for relief of pain from her service-connected right knee disability, or even for her other service-connected musculoskeletal disabilities of the hips and low back, caused glomerulonephritis.  

The Veteran is clearly competent to report what her physicians have told her.  However, the available medical records reflect no specific opinions that her use of NSAIDs has caused or aggravated her glomerulonephritis.  As the Board cannot determine the rationale supporting the alleged physician opinions, the Board places greater probative weight to the VHA opinion which contains a clearly stated rationale with reference to the specific facts of this case.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

The Internet articles submitted by the Veteran in support of her claim also contain some probative information to the extent that it was a factor for obtaining a VHA opinion in this case.  However, this treatise information provides theories of a possible connection between anti-inflammatory drugs and renal pathology, but do not go so far as stating that all prescriptions of NSAIDs result in renal pathology.  Here, the Board finds that the VHA examiner opinion holds substantially greater probative value than the generic Internet articles as the VHA examiner provided an opinion based upon the specific facts of this case, to include whether the Veteran demonstrated any characteristics of NSAID-induced kidney disease.

In response to the VHA opinion, the Veteran has pointed to 38 C.F.R. § 4.115 for the proposition that the glomerula type of nephritis is preceded or associated with infections, and that this was not taken into account in the VHA opinion.  The provisions of 38 C.F.R. § 4.115 state, in pertinent part, as follows: 

Albuminuria alone is not nephritis, nor will the presence of transient albumin and casts following acute febrile illness be taken as nephritis.  The glomerular type of nephritis is usually preceded by or associated with severe infectious disease; the onset is sudden, and the course marked by red blood cells, salt retention, and edema; it may clear up entirely or progress to a chronic condition.  

A review of the VHA opinion makes it clear that the Veteran's UTIs during service were both cited and considered.  However, it was not found to be "severe" and the record also does not show that the in-service UTIs were accompanied by salt retention, and edema.  Equally significant, § 4.115 states that such infections may clear up entirely or progress to a chronic condition.  The VHA opinion shows that it was concluded that there had not been an in-service progression to a chronic condition but, rather, the UTIs during service were acute and transitory.  While the VHA opinion did not specifically cite § 4.115, it did address the medical matters referred to in § 4.115 and the Board may not conclude that the medical expert in rendering the VHA opinion was unaware of the medical principles relevant to the Veteran's case.  The Veteran has not otherwise contested the expertise of the source of the VHA opinion and the Board sees no other reason to do so.  Notably, the VHA opinion involved a concurring opinion by three different examiners.

The Veteran also alleges that there were factual inaccuracies in the VHA opinion because it related information concerning her pregnancies that was chronologically incorrect.  However, even if true, the Veteran does not explain how this would be significant to the conclusion reached in the VHA opinion or how it might otherwise have changed the conclusion reached.  In the opinion of the Board, the VHA opinion is based upon an accurate factual history regarding material facts in this case.

Also, the Veteran has cited to two prior Board decisions which she believes support her claim.  In one of the cited decisions the Board remanded the claim for VCAA compliance and an additional medical opinion, and so this is no relevant.  In the other Board decision, service connection was granted for kidney disability after weighing multiple favorable medical opinions against multiple negative medical opinions.  

In general, Board decisions are not precedential in nature.  38 C.F.R. § 20.1303; see also McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009).  The facts of this particular case are not the same as those in the non-prejudicial Board decisions.  The Board, therefore, finds no basis to apply those findings to the case at hand. 

The Veteran also states that she had been advised to file a claim for VA compensation for kidney disability by a VA examiner that examined her right knee and, thus, either that examiner was wrong or the VHA opinion was wrong.  Again, the Veteran offers no further details or information relative to what she was told by any VA examiner or the reasoning behind that opinion.  The Board places greater probative weight to the VHA opinion which contains a clearly stated rationale with reference to the specific facts of this case.  See Stefl, 21 Vet. App. at 124.

As such, the preponderance of the evidence is therefore against a finding that the Veteran's glomerulonephritis was incurred or aggravated during service or is in any way related to, i.e., caused or aggravated by, her service-connected disabilities, including medication taken for her service-connected disabilities. 

Hearing Loss

For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent.  38 C.F.R. § 3.385. 

It is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

If the record shows evidence of inservice acoustic trauma and inservice audiometric results indicate an upward shift in tested thresholds, and if postservice audiometric testing results meet the requirements of 38 C.F.R. § 3.385, it must be determined whether there is a medically sound basis to attribute the postservice findings to injury in service, or whether they are more properly attributable to intercurrent causes.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Here, unlike in Hensley, Id., there is no upward shift of auditory thresholds on the basis of in-service audiometric testing in either ear.  More importantly, audiometric testing during and after military service does not establish that the Veteran now has a hearing loss by VA standards in either ear.  That is, she has never had (1) auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of 40 decibels or greater; or (2) auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test which are less than 94 percent.  

Thus, despite the opinion of the private audiologist in October 2009 that the Veteran had a hearing loss, the evidence simply does not establish that there currently exists a hearing loss disability in either ear, under VA standards.  The Board finds, by a preponderance of the evidence, that the Veteran has not manifested hearing loss per VA standards at any time since service her service discharge.  See generally McClain v. Nicholson, 21 Vet. App. 319 (2007).  The issue of service connection for hearing loss, therefore, must be denied for lack of a current disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.) 

Accordingly, the claim must be denied because the preponderance of the evidence is unfavorable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Tinnitus

The Veteran seeks to establish her entitlement to service connection for tinnitus.  She first filed her service connection claim in January 2009.  A January 2009 private audiology examination report first documents a positive history for tinnitus.  She has recently alleged that her tinnitus began during military service and continued after service.  See VA Form 9 received October 2010.  Otherwise, she asserts that her tinnitus results from noise exposure in service.

As discussed above, the Veteran has failed to report for VA audiology examination intended to obtain a more specific history from the Veteran, and a medical opinion based upon the whole evidentiary record.  Unfortunately, the Veteran failed to cooperate in attending a VA examination.  Thus, the claim must be decide based upon review of the evidence of record.  38 C.F.R. § 3.366(a).

Here, the available STRs reflect no lay or medical evidence of tinnitus.  The post-service medical records also reflect no complaint or evaluation for tinnitus until January 2009, which is more than 15 years after service discharge.  Thus, the only evidence supportive of this claim consists of her VA Form 9 statement received in October 2010, which is more than 16 years after service discharge.

Unfortunately, the Board must find that the Veteran's allegation of constant tinnitus since service is not reliable or credible.  The Veteran filed her first formal application for service-connected benefits in March 2005.  At that time, she did not reflect any belief that she manifested tinnitus which began or resulted from service.  Her extensive clinic records covering a 15-year period after service discharge reflect no lay or medical complaint of tinnitus, and no report by the Veteran of having a past medical history of tinnitus to her treating physicians.  With respect to the recent allegation in 2010, the Veteran does not provide any specifics as to the year tinnitus first manifested, whether the tinnitus was intermittent or constant in degree, whether it manifested during a period of reserve rather than active service, etc.  Thus, the record on appeal only contains a vague allegation of in-service onset of tinnitus made more than 15 years after service discharge.

Additionally, the record does not contain any opinion from a medical examiner that the Veteran's tinnitus manifested more than 15 years after service results from an event in service, to include noise exposure.  The Veteran herself is not deemed competent to provide a medical nexus opinion regarding the causes and etiology of tinnitus.  38 C.F.R. § 3.159(a)(1), (a)(2).  See FED. R. EVID. 702 (an expert witness must have the scientific, technical, or other specialized knowledge which will help the trier of fact to understand the evidence or to determine a fact in issue).  See also 67 Fed. Reg. 59033-01 (Sept. 19, 2002); 68 Fed. Reg. 25822-01 (May 14, 2003) (describing tinnitus as a phantom sensation arising from the brain which is comparable to a central nervous condition).

Here, the mere absence of medical records does not contradict the Veteran's statements about her symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  However, the Board finds that the Veteran did not report any symptoms of tinnitus for approximately 15 years after service, which tends to weigh against a finding of a connection between the disability and service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

In this respect, the Veteran's first statement of in-service onset in 2010 is not consistent with her medical records covering this 15 year period wherein she appears to have reported all of her existing medical conditions without mentioning any tinnitus problems.  See AZ v. Shinseki, No.2012-7046, 2013 WL XXXXXXX, at *Y (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded").  Based upon the language and context of her medical record, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that she was experiencing at that time.  Therefore, her failure to report any complaints of tinnitus is persuasive evidence that she was not then experiencing tinnitus and outweighs her present, non-specific and vague recollection to the contrary almost 16 years after the events in question.

As such, the preponderance of the evidence is against the claim for service connection for tinnitus and, so, service connection for tinnitus is not warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Initial Right Knee Rating

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 under DCs 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.A. § 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; see also 38 C.F.R. § 4.21.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999).

In rating musculoskeletal disabilities, consideration is given to functional loss due to pain, weakness, excess fatigability, or incoordination when those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2008); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). 

Disability of the musculoskeletal system is primarily the inability to perform the normal working movements with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  The factors of joint disability reside in reductions of normal excursion of movements in different planes.  Also for consideration are more or less than normal movement, weakened movement, excess fatigability, incoordination, painful motion, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

When evaluating joint disabilities rated on the basis of limited of motion, a higher rating may be warranted when there is functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Moreover, although pain may be a cause or manifestation of functional loss, limited motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 

In sum, Mitchell held that pain on motion is not, itself, "functional loss," but "may result in functional loss ... only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance'."  Id. at 5 (quoting 38 C.F.R. § 4.40). 

VA must determine the overall functional impairment of joint disability due to the factors listed above.  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Painful motion with joint or periarticular pathology is productive of disability, and actually painful, unstable, or malaligned joints, due to healed injury, warrant at least the minimum compensable rating.  38 C.F.R. § 4.59.

Service connection has been granted for chondromalacia of the knee.  Under DC 5014, osteomalacia is rated as degenerative arthritis under DC 5003.

A disorder not listed in the rating schedule may be rated as if it were a closely related disease or injury, when (1) the functions affected, (1) the anatomical localization, and (3) symptoms are closely analogous.  38 C.F.R. §§ 4.20, 4.27; see also Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992) and Archer v. Principi, 3 Vet. App. 433 (1992).  The Board finds that the use of DC 5014, for rating chondromalacia is appropriate because the functions affected, anatomical localization, and symptomatology are closely analogous.  

"Chondromalacia patella is defined as the premature degeneration of the patellar cartilage, the patellar margins are tender so that pain is produced when the patella is pressed against the femur."  Odiorne v. Principi, 3 Vet. App. 456, 458 (1992) and Rollings Brown, 8 Vet. App. 8, 11 (1995).  Chondromalacia patellae is abnormal softness of the cartilage of the kneecaps.  Clyburn v. West, 12 Vet. App. 296, 298 (1999).  Patellofemoral pain syndrome (chondromalacia of patella, retropatellar pain syndromes, patellofemoral syndrome) are a group of disorders characterized by anterior knee pain between the patella and the femur, especially on climbing or descending stairs or on squatting.  There may be deep tenderness on palpation and pressure on the patella, crepitus on motion, a grinding sensation behind the patella, and occasionally swelling.  68 Fed. Reg. 7018 (Feb. 11, 2003).  

DC 5003 provides three rating methods for rating degenerative arthritis.  First, when there is X-ray evidence rate based on limited motion under the appropriate DCs for the specific joint or joints involved.  Second, when motion is not limited or limited only to a noncompensable degree, a minimum, rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion, to be combined not added.  Limited motion must be confirmed by swelling, muscle spasm or satisfactory evidence of painful motion.  Third, when there is no limited motion but X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent is warranted but if there are occasional incapacitating exacerbations 20 percent is warranted.  

With respect to the first method, the appropriate DCs to rate limited motion of a knee are DC 5260, which provides for a minimum, 10 percent, compensable rating for flexion of a knee limited to 45 degrees; and DC 5261, which provides for a minimum, 10 percent, compensable rating for extension of a knee limited to 10 degrees.  38 C.F.R. § 4.71a, DCs 5260 and 5261.  Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II.

Separate ratings for limitation of motion in flexion and in extension of a knee may be assigned.  See VAOGPREC 9-2004 (September 17, 2004).  Also, a compensable degree of limited motion under DCs 5260 and 5261 need not be shown; rather, a compensable rating may be granted, in addition to a rating for instability under DC 5257, if there is X-ray evidence of arthritis and also painful motion under 38 C.F.R. § 4.59.  

DC 5256 provides that favorable ankylosis of a knee, at an angle in full extension, or in slight flexion between 0 degrees and 10 degrees warrants a minimum rating of 30 percent.  38 C.F.R. § 4.71a, DC 5256.

DC 5257 provides that a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability; and 30 percent disability rating is assigned for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, DC 5257.  

DC 5258 provides that a 20 percent evaluation, the highest and only rating available under that schedular provision, is assigned where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint.  38 C.F.R. § 4.71a, DC 5258.

Symptomatic residuals of removal of a semilunar cartilage warrant a maximum 10 percent rating.  38 C.F.R. § 4.71a, DC 5259.  Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion.  VAOGCPREC 9-98.  

DC 5262 provides that malunion of the tibia or fibula with slight knee disability warrants a 10 percent rating; with moderate knee disability 20 percent is assigned; and with marked knee disability a maximum 30 percent rating is assigned.  38 C.F.R. § 4.71a, DC 5262

DC 5263 provides that genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated, warrants a maximum 10 percent rating.  38 C.F.R. § 4.71a, DC 5263.

Descriptive words such as "slight." "moderate" and "severe" are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  

Taking into consideration both the Veteran's subjective complaints of increased symptomatology with use as corroborated in the clinical records, and the objective findings from the VA examinations, the Board concludes that the Veteran does have impairment of the knee due to painful motion so as to warrant the currently assigned 10 percent evaluation under DC 5014.  However, further compensation based upon limitation of motion is not warranted.  

The clinical findings during the appeal period have measure right knee range of motion as 0-130 degrees (September 2005), 0-120 degrees (January 2006), and 0-130 degrees (October 2007).  A May 2005 private examination report otherwise described full and unrestricted motion.  Neither the Veteran nor her husband has described right knee motion limited to 45 degrees of flexion or 10 degrees of extension.  Thus, the criteria for a compensable rating under DCs 5261 or 5262 are not met or more closely approximated. 

The primary complaint of the Veteran concerns episodes of subluxation.  The medical findings reflect a valgus deformity of the right knee which, in February 2006, a VA examiner commented was compatible with her history of patella subluxation.  The Veteran has described the frequency of her subluxation episodes due to weakness as occurring 1 to 2 times per year, which the Board finds is credible and compatible with her medical findings.  However, the VA and private examination report have found no significant instability or subluxation on examination.

Overall, the Board finds that a separate 10 percent rating is warranted for recurrent subluxation of the patella which is no more than mild in degree.  The episodes of subluxation are relatively infrequent, and the overall clinical findings do not show significant instability or subluxation on examination.  Thus, the Veteran's credible description of symptoms is no more than slight in degree.

The Board finds that the Veteran has demonstrated active motion of the right knee, and that there is no credible lay or medical evidence of ankylosis.  As such, the criteria of DC 5260 do not apply.

The medical evidence has considered, but ruled out, a meniscal etiology for the Veteran's right knee complaints.  There is no evidence of dislocated cartilage or history of removal of a semilunar cartilage.  Thus, the criteria of DCs 5258 and 5259 do not apply.

Additionally, there is no history or x-ray evidence of malunion of the tibia or fibula.  Thus, the criteria of DC 5262 do not apply.  

The Veteran manifests a valgus deformity, and not a genu recurvatum deformity.  thus, the criteria of DC 5263 do not apply.  Notably, the Veteran does manifest similar symptoms which have been used to directly support a 10 percent rating under DC 5257.  Thus, a rating by analogy would violate the rule against pyramiding.  See 38 C.F.R. § 4.14.

Thus, the current rating contemplates painful but noncompensable motion loss rated as 10 percent under DC 5014, and slight recurrent subluxation rated as 10 percent under DC 5257.  The Board finds no further impairment which warrants a higher evaluation even when considering functional impairment under 38 C.F.R. § 4.40 and 4.45.

The Veteran has described functional impairment on use which includes an inability to run, pain on use, episodes of subluxation, an uneven wear pattern of her shoes and even a leg length discrepancy.  In September 2005, the VA examiner found that repetitive testing was not associated with increased pain, incoordination, decreased strength or decreased motion.  The examiner also found no leg length discrepancy.  In October 2007, a VA examiner found no additional limitation of motion on repetitive testing, and described the right knee disability as having a moderate effect on exercising and sports, and a mild or no effect on other activities.

Overall, the Board finds that the separate 10 percent ratings assigned under DC 5014 and DC 5257 contemplate all aspects of functional impairment on use, and that further compensation is not warranted due to functional impairment on use which does not result in any additional motion loss, pain, incoordination or decreased strength.  The Board also finds no credible evidentiary basis to assign a separate rating for leg length discrepancy based on the clinical findings by the VA examiner.

In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of her service-connected disability and notes that her, and her husband's, statements are competent to describe certain symptoms associated with the disability.  These contentions have been relied upon, in part, to assign a separate rating for the undocumented description of subluxation episodes.  However, to the extent that they argue for a higher rating still, the Board places greater probative weight to the findings of the private and VA physicians who have greater expertise and training than the Veteran and her husband in evaluating the extent of her orthopedic impairment.
 
In reaching the aforementioned determinations, the Board has considered the holding in Mittleider v. West, 11 Vet. App. 181, 182 (1998), "when it is not possible to separate the effects of the [service-connected condition and [a] non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition."  As applied in this case, the Board has attributed all potentially service-connected symptoms to the right knee.  

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right knee disorder; however, the Board finds that her symptomatology has been stable throughout the appeal.  Therefore, assigning staged ratings for such disability is not warranted.  In sum, the Board finds that a rating greater than 10 percent is not warranted under DC 5014, but that a separate 10 percent rating under DC 5257 is warranted.  There is no doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).

Other Considerations

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration for the disability at issue.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

The rating criteria for the right knee disorder contemplate the impairment from that disability, i.e., interference with function and this is encompassed in the award of the 10 percent rating and subluxation which is contemplated in a separate 10 percent rating.  The governing rating criteria encompass a wide range of signs and symptoms and the service-connected disorder require application of the holding in Deluca, supra, and Mitchell, supra, which, in turn, requires consideration of 38 C.F.R. §§ 4.40 and 4.45.  38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy.  Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing.  Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion.

Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is contemplated by the Rating Schedule and the assigned schedular rating is adequate.  There are no additional symptoms of disability that are not addressed by the rating schedule or considered in this decision.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of her service-connected right knee disability.  Thus, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

The Veteran is service-connected for patellar chondromalacia of the right knee, rated 10 percent; right trochanteric bursitis, rated 10 percent; left trochanteric bursitis, rated 10 percent, and a noncompensable disability rating is assigned for DDD of the lumbar spine; for a combined disability rating, including the bilateral factor, of 30 percent.  This meets does not meet the percentage requirements for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) under 38 C.F.R. § 4.16(a).  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the evidence indicates that the Veteran had remained employed on a full-time basis as a computer analyst.  Thus, the evidence does not raise an implied or informal claim for a TDIU rating.  See Comer v. Peake, 552 F.3d 1362, 1366 (Fed.Cir. 2009) (VA must consider a TDIU rating when there is "cogent evidence of unemployability.").  In sum, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary.



ORDER

Service connection for glomerulonephritis, to include as secondary to a service-connected right knee disability is denied.  

Service connection for bilateral hearing loss is denied.  

Service connection for tinnitus is denied.  

An initial rating in excess of 10 percent for chondromalacia of the right knee under DC 5014 is denied, but a separate 10 percent rating for slight subluxation under DC 5257 is granted.




____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs