Citation Nr: 0812389 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-28 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a left knee injury. 2. Entitlement to service connection for a hip disorder as secondary to a left knee injury. 3. Entitlement to service connection for a back disorder as secondary to a left knee injury. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from October 1979 to October 1982 and has verified active duty for training (ACDUTRA) dates in 1982, 1983, and 1985. The matter of entitlement to service connection for bilateral hearing loss is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Waco, Texas. The issues of entitlement to service connection for left knee, hip, and back disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. A Travel Board hearing was held before the undersigned Veterans Law Judge in March 2008. A copy of the transcript of that hearing is of record. FINDING OF FACT The veteran does not have a current diagnosis of bilateral hearing loss. CONCLUSION OF LAW The veteran's claimed current bilateral hearing loss was not incurred in or aggravated by his active service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, an April 2004 letter to the veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). The information and evidence associated with the claims file consist of the veteran's service treatment records, VA medical treatment records, and statements and testimony from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The United States Court of Appeals for Veterans Claims (Court) held that the 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the veteran was provided with notice of this information in a letter dated in March 2006. Service Connection - Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, including sensorineural hearing loss, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2007). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.30(d) (2007). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 5000, 1000, 2000, 3000, or 4000 Hertz 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 (2007). The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The veteran's service treatment records are negative for any complaints of or treatment for hearing loss. The veteran underwent audiometric examination at time of discharge in October 1982, and his hearing was within normal limits. There is no post-service evidence of diagnoses of or treatment for bilateral hearing loss, to include those records recorded when the veteran was on ACDUTRA. The first mention that he had hearing loss was when he initially filed a claim for compensation benefits in 2003. This is many years after his separation from active duty or even ACDUTRA. This extended period between service and the first complaint of hearing loss provides highly probative evidence against the veteran's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). At the recent hearing in March 2008, the veteran testified that he was exposed to acoustic trauma during service. Now, he experienced trouble hearing the television and had difficulty hearing when being spoken to when, for example, the radio and television were both on. However, as pointed out above, there simply is no clinical evidence of hearing loss in service or in the post service treatment records. This fact is highly probative against the veteran's claim. Absent evidence of a current disability, service connection for bilateral hearing loss must be denied. There is no competent medical evidence of record that demonstrates the presence of hearing loss. Because no bilateral hearing loss has been currently diagnosed in this case, the Board finds that service connection for bilateral hearing loss is not warranted. The Board has considered the veteran's claims that he has hearing loss related to his service. However, as a layman, the veteran is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The competent evidence of record does not demonstrate that the veteran has bilateral hearing loss. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. REMAND As to the veteran's claims of service connection for residuals of a left knee injury with associated secondary disorders of the hip and back, additional evidentiary development is necessary. Review of the record reflects that the veteran was on ACDUTRA in early May 1985 when he was seen for complaints of a left knee sprain. A possible left meniscal tear was noted. The veteran was informed that he should not attempt any prolonged walking or standing, and he was to elevate the knee and keep it immobilized. He was also restricted to light duty. Later that month, he was again seen for left knee complaints, to include soreness with increased pain. Tenderness and slight swelling was noted. The examiner's assessment was chronic infra patella knee pain. Subsequently dated VA records, to include documents dated from 2002 through 2004 show complaints associated of the left knee. Magnetic resonance imaging (MRI) in 2003 showed maceration/complex tearing involving the medial meniscus and peripheral migration, chondromalacia, multiple areas of contusion/edema, moderate joint effusion, suprapatellar plica, abnormal signal in a portion of Hoffa's fat, possible representing Hoffa's disease, and significant osteophyte formation at multiple locations. The veteran has testified that he continues to experience left knee problems. He also reported that he now suffers from hip and back conditions that have resulted from his left knee disorder. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c)(4) (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The record reflects that while the veteran failed to show for numerous scheduled VA examinations, he has pointed out that he was incarcerated at least on one occasion and unable to appear. The record also reflects that he is no longer incarcerated. Under these circumstances, the Board finds that the RO should again attempt to arrange for the appellant to undergo VA evaluation to obtain medical findings needed to resolve the claims on appeal. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the appellant fails to report to the scheduled examination, the RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. Accordingly, the case is REMANDED for the following action: 1. The AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007), and any other applicable legal precedent. 2. The AMC should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his left knee, hip, or back conditions, on appeal. Any records that are not currently included in the clams file should be obtained and added to the file. With any necessary authorization from the veteran, the AMC should attempt to obtain copies of pertinent treatment records identified by the veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and the veteran is to be informed of any records that could not be obtained. If pertinent records are received, the AMC should ensure that VCAA examination and medical opinion requirements under 38 C.F.R. § 3.159(c)(4) are met as to this issue. 3. The AMC RO should schedule the veteran for a VA orthopedic examination to determine whether current left knee disability, if any, is at least as likely as not related to the documented complaints of left knee problems while the veteran was on ACDUTRA in May 1985. Additionally, if left knee disability is indicated, it should be determined if the veteran has hip or back conditions, and, if so, whether it is at least as likely as not that such is/are related to or aggravated by any left knee disorder. In formulating these medical opinions, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion(s) is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the requested opinions cannot be provided without resort to speculation, the examiner should so state. 4. After the development is completed, adjudicate the claim. If any benefit sought is denied, provide the veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs