Citation Nr: 0813319 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-24 735A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a bilateral knee disorder, to include arthritis. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from July 1960 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. The veteran does not have current right ear hearing loss disability for VA compensation purposes. 2. The medical evidence does not include a current diagnosis of a bilateral knee disorder, to include arthritis. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in or aggravated by the veteran's active duty service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. A bilateral knee disorder, to include arthritis, was not incurred in or aggravated by the veteran's active duty service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that VA has an obligation to notify claimants of what information or evidence is needed to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. With respect to the veteran's claims for service connection, VA has met all statutory and regulatory notice and duty to assist provisions or can rebut a presumption of any prejudicial error identified. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007); Sanders v. Nicholson, 487 F. 3d 881, 889 (2007) (any error in providing Veterans Claims Assistance Act (VCAA) notice is presumed prejudicial and the Secretary has the burden of showing the error was not prejudicial to the claimant). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; and (4) must specifically request that the claimant provide any evidence in his possession that pertains to the claim. When a claim is for service connection, VA must also provide notice that a disability rating and an effective date will be assigned for an award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). To the extent possible, VCAA notice should be provided to a claimant before an initial unfavorable agency of original jurisdiction decision on a claim. However, if, for whatever reason, this did not occur, VA can "cure" this timing defect by providing any necessary notice and going back and readjudicating the claim such that the intended purpose of the notice is not frustrated and the veteran is given opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 07- 7130 (Fed. Cir. September 17, 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Lack of prejudicial harm for failure to provide proper notice may be established by showing (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. See Sanders, supra. Here, in January 2005, VA sent the veteran a timely VCAA notice letter that satisfied all the requirements noted above - except that it did not advise him that a downstream disability rating and an effective date for an award of benefits would be assigned if service connection is eventually granted. See Dingess, supra. The veteran has since been provided this required Dingess notice, in a March 2006 letter. Although the March 2006 letter was issued after the May 2005 rating decision, the Board notes that the issues were readjudicated and a SOC issued in May 2006 and an SSOC issued in October 2006. The Board is thus satisfied that VA has complied with the notification requirements of the VCAA and the implementing regulations. See Quartuccio, 16 Vet. App. 183. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran underwent VA audiometric examination in August 2005 and joints examinations in April 2005 and April 2006 and his service and VA medical records have been obtained. Accordingly, it is reasonable to conclude that any failure on the part of VA to provide additional notice or assistance, if alleged, would not affect the outcome of the decision concerning the veteran's claims decided herein. Therefore, such failure, if identified, would be harmless error. See Mayfield IV, supra, and 38 C.F.R. § 20.1102. One final preliminary point bears mentioning, the Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the Board discuss each and every piece of evidence submitted by the appellant or obtained on his behalf. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, such as sensorineural hearing loss (as a disease of the central nervous system) and arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113; 38 C.F.R. § 3.307, 3.309. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). Right Ear Hearing Loss The veteran initially disagreed with the May 2005 denial of service connection for bilateral hearing loss; however, by a May 2006 rating decision, service connection for left ear hearing loss was granted and he perfected the appeal with respect to the denial of service connection for right ear hearing loss. For the purposes of applying VA laws, 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 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The veteran's service records show that, upon enlistment examination in July 1960, his hearing was measured at 15 of 15 whispered voice, bilaterally. Upon audiological evaluation for discharge in May 1964, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 0 5 LEFT 0 5 0 10 5 Post service medical records are silent with respect to findings or complaints of hearing loss until August 2005 when, on VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 30 LEFT 25 15 15 25 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The examiner noted the current audiological findings revealed mild to moderately severe sensorineural hearing loss and excellent word recognition ability. Given these results, by a May 2006 rating decision, service connection for left ear hearing loss was granted. However, with respect to the right ear, the examination finding demonstrate that the veteran does not have impaired hearing by VA standards. In Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) ,the United States Court of Appeals for Veterans Claims held that the regulation prohibited an award of service connection where audiometric test scores are within the established limits. Therefore, in the absence of evidence demonstrating that the veteran has right ear hearing loss by VA standards, service connection is not warranted and his claim for service connection for right ear hearing loss must be denied. Arthritis of the Knees When determining whether a disability is due to a disease or an injury in service, or preexisted service, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-2003; 69 Fed. Reg. 25178 (2004). In this case, the veteran's July 1960 enlistment examination report reflect a history of trick left knee, in locking, no effusion, give out 1960, and X-rays of left knee negative. In addition, the veteran reported a history of avulsion fracture of the left knee and broken right leg above the ankle. Accordingly, lower extremity complaints were noted in the report of his military enlistment examination. This is clear and unmistakable evidence his lower extremity impairment, to include bilateral knees, preexisted his military service, in turn meaning the presumption of soundness at service entrance does not apply. The remaining service medical records reflect recurrent complaints of knee impairment, to include right knee trauma in August 1962 and a February 1963 impression of mild traumatic arthritis, rule out gout, with respect to treatment for the right knee. It is noted that there is no indication in the record that this diagnosis of arthritis was based on X-ray examination. The veteran's May 1964 discharge examination report notes left knee injury, 1958, no sequelae, and right leg fracture, no sequelae. He reported that he was in good health and X-ray examination of the knees revealed no bone or joint abnormalities. Upon VA joints examination in April 2005, the veteran denied pain on a regular basis and reported no history of treatment other than aspirin or Advil during flare-ups. He reported a history of subluxation about nine years previously when his left knee gave out on him. With the exception of some discomfort noted at full extension of the left knee, the veteran had full and painless range of motion of the knees, bilaterally. Some instability of the left knee lateral collateral ligament was noted. X-ray examination of the knees was normal. The diagnosis was instability of the left knee as likely as not exacerbated by military service. Upon VA joints examination in April 2006, the veteran complained of bilateral knee pain, described as a stabbing burning sensation with stiffness, right knee greater than left. He reported that his right knee gave away one year previously and the left knee does not give way. Objective findings revealed no loss of motion, pain, or laxity of either knee. Bilateral knee X-rays were normal. The diagnosis was bilateral knee examination within normal limits. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation for purposes of entitlement to VA compensation benefits requires more than a pre-existing disorder becoming intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). Here, the medical evidence of record shows the veteran's bilateral lower extremity injuries preexisted his military service and the residuals of these injuries were not chronically aggravated by his military service. Specifically, left knee and right leg injuries were noted on enlistment in July 1960 and the veteran sought treatment for his knees during service; however, these injuries were noted to have no sequelae upon discharge. Moreover, there have been no knee complaints or treatment since separation and his most recent VA examination, in April 2006, includes a diagnosis of "bilateral knee examination within normal limits." Consequently, the weight of the evidence is against the veteran's claim for service connection for a bilateral knee disorder because the injuries not only clearly and unmistakably pre-existed his military service but also clearly and unmistakably were not chronically aggravated by his military service - certainly beyond the natural progression. Congress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. The more probative evidence establishes the veteran does not have a bilateral knee disorder, to include arthritis, per se. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent evidence of a current disorder of either knee, left or right, his claim fails. Specifically with respect to the issue of arthritis, as noted above, service connection may be granted on a presumptive basis for arthritis (which, incidentally, according to 38 C.F.R. § 4.71a, Diagnostic Code 5003, must be confirmed by X-ray), if manifested to a compensable degree (10 percent or higher) within one year after discharge from active service, even without evidence of diagnosis thereof in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In the present case, inasmuch as the veteran's symptoms have never been diagnosed as arthritis based on X-ray findings, service connection for arthritis on a presumptive basis under 38 C.F.R. § 3.309(a) is not warranted because arthritis was not manifest within one year of his service discharge. Insofar as the veteran complains of bilateral knee pain and instability and left knee instability has been noted to have been exacerbated by military service upon VA examination in April 2005, it is important to note that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Moreover, subsequent examination in April 2006 found no instability. For these reasons and bases, the preponderance of the evidence is against the claims for service connection for right ear hearing loss and a bilateral knee disorder, to include arthritis. Since the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine is not for application. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for right ear hearing loss is denied. Service connection for a bilateral knee disorder, to include arthritis, is denied. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs