Citation Nr: 1031002	
Decision Date: 08/18/10    Archive Date: 08/24/10

DOCKET NO.  09-04 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, 
Alaska


THE ISSUES

1.  Entitlement to service connection for a left knee disorder.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the 
United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Young


INTRODUCTION

The Veteran had active military duty from July 1983 to May 1986.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a November 2006 rating decision issued by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Columbia, South Carolina.  Jurisdiction over this case is 
currently with the Anchorage, Alaska RO.  In June 2010, the 
Veteran testified before the undersigned Veterans Law Judge 
sitting at the RO.  A copy of the hearing transcript is 
associated with the claims folder and has been reviewed.


FINDINGS OF FACT

1.  A preponderance of the evidence is against a finding that a 
left knee disorder had its onset or was otherwise related to the 
Veteran's period of service; degenerative joint disease of the 
left knee was not manifested within the first post service year.

2.  The preponderance of the evidence is against a finding of 
that the Veteran has bilateral hearing loss related to service.

3.  A preponderance of the evidence is against a finding that 
tinnitus had its onset or was otherwise related to the Veteran's 
period of service.




CONCLUSIONS OF LAW

1.  A left knee disorder was not incurred in or aggravated by 
active service and degenerative joint disease of the left knee 
may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 
3.102, 3.159, 3.303, 3.307, 3.309 (2009).

2.  Bilateral hearing loss was not incurred in or aggravated by 
active service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2009).

3.  Tinnitus was not incurred or aggravated in service. 38 
U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 
3.102, 3.159, 3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 
5103A, (West 2002); 38 C.F.R. § 3.159 (2009).

In correspondence dated May 2006 the Veteran was provided with 
the information and evidence necessary to substantiate his claims 
for compensation.  Specifically, the RO notified the Veteran of 
the information and evidence that VA would seek to provide and 
the information and evidence that he was expected to provide.  
The RO satisfied its duty to notify the Veteran under 38 U.S.C.A. 
§ 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009).  VA 
informed him that it would make reasonable efforts to help him 
get evidence necessary to support his claim, particularly, 
medical records, if he gave VA enough information about such 
records so that VA could request them from the person or agency 
that had them.  In that same correspondence the RO specifically 
notified the Veteran of the process by which initial disability 


ratings and effective dates are established.  See Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  

There is no indication that any additional action is needed to 
comply with the duty to assist the Veteran.  The RO has obtained 
copies of the service treatment records, VA Medical Center (MC) 
outpatient treatment and records.  The Veteran has been afforded 
a VA medical examination.  He has not identified, and the record 
does not otherwise indicate, any existing pertinent evidence that 
has not been obtained.  Given these facts, it appears that all 
available records have been obtained.  There is no further 
assistance that would be reasonably likely to assist the Veteran 
in substantiating the claim.  38 U.S.C.A. § 5103A(a)(2). 

II.  Service Connection Claims

In general, service connection will be granted for disability 
resulting from injury or disease incurred in or aggravated by 
active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  
If a condition noted during service is not determined to be 
chronic, then generally a showing of continuity of symptomatology 
after service is required for service connection.  38 C.F.R. § 
3.303(b).  Service connection may also 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.  38 C.F.R. § 3.303(d).  In addition, service 
connection may be presumed for certain chronic diseases that are 
manifested to a compensable degree within one year after 
separation from service.  38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 
3.307, 3.309(a).  Establishing service connection generally 
requires medical or, in certain circumstances, lay evidence of 
(1) a current disability; (2) an in-service incurrence or 
aggravation of a disease or injury; and (3) a nexus between the 
claimed in- service disease or injury and the present disability.  
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

It is noted that the Board has reviewed all of the evidence in 
the Veteran's claims folder.  Although the Board has an 
obligation to provide reasons and bases supporting this decision, 
there is no need to discuss, in detail, the extensive evidence of 
record.  Indeed, the Federal Circuit has held that the Board must 
review the entire record, but does not have to discuss each piece 
of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 
2000).  Therefore, the Board will summarize the relevant evidence 
where appropriate.

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative balance, with the Veteran prevailing in either event, or 
whether a preponderance of the evidence is against a claim, in 
which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. 
App. 49, 53 (1990); 38 U.S.C.A. § 5107(b) (West 2002).

A.  Left Knee Disorder

The Veteran asserts that he is entitled to service connection for 
a left knee disorder incurred during his period of service.  He 
has attributed his left knee disorder to a twisting injury of the 
left knee while he was in the military.

A review of the Veteran's service treatment records shows that in 
December 1984 the Veteran complained of intermittent bilateral 
knee pain with no swelling or aching.  The impression rendered 
was chondromalacia; physical therapy was recommended.  A follow-
up report, also dated in December 1984, indicates the Veteran was 
seen at a physical therapy clinic with complaints of knee pain 
for one year.  He reported that he "plays lots of basketball."  
He was rendered an assessment of knee pain.  There are further 
references made to the Veteran's right knee, but none regarding 
his left knee and there in no service discharge examination of 
record.  

Post-service VA treatment records show a reported history of left 
knee pain.  VAMC outpatient note of September 2006 provides an 
impression of bilateral knee pain, most consistent with patellar 
femoral syndrome.  In addition, x-rays of the knees in September 
2006 revealed minor changes of degenerative joint disease.  VA 
compensation examination in October 2008 shows a diagnoses of 
minor degenerative joint disease of the knees with decreased and 
painful motion and an increase in pain with repetitive motion.  
With further regard to the left knee, the examiner opined that it 
is less likely as not that the minor contusion and strain of 
playing basketball in the mid-1980's relate to any current 
disease process of the knees.  The Board finds this medical 
opinion to be highly probative.  Specifically, the examiner had 
the claims folder for review, discussed the findings in the 
claims folder, obtained a reported history from the Veteran, and 
conducted a complete examination.  There is no indication that 
the VA examiner was not fully aware of the Veteran's past medical 
history or that any relevant facts were misstated.  See Barr v. 
Nicholson, 21 Vet. App. 303 (2007).  

Although the evidence shows there were complaints of left knee 
pain in service, there is a lack of evidence of a chronic left 
knee disorder in service and a causal connection between the 
current left knee disorder and any in-service left knee 
impairment.  In addition, there is no evidence that a left knee 
disorder was shown within an applicable presumptive period 
following service.  As such, service connection is not warranted.  

Following separation in 1986, there is no showing of treatment 
associated with the Veteran's left knee until 2006 -- twenty 
years later.  Evidence of a prolonged period without medical 
complaint, and the amount of time that elapsed since military 
service, can be considered as evidence against the claim.  Maxson 
v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  It is 
acknowledged that the Veteran is competent to report observable 
symptoms such as knee pain.  Layno v. Brown, 6 Vet. App. 465 
(1994).  Furthermore, lay evidence concerning continuity of 
symptoms after service, if credible, is ultimately competent, 
regardless of the lack of contemporaneous medical evidence.  
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  To the 
extent that the Veteran is claiming continuous left knee 
symptomatology since active service, he is credible.  Service 
treatment records in 1984 show a strain of the knees from playing 
basketball and there are no further entries found relative to 
left knee complaints until many years after separation from 
service.  However, the Veteran did not raise a claim for the 
claimed left knee disorder until 2006 -- twenty years following 
discharge.  Even if he had been experiencing symptoms since 
service, it is not shown that he exhibited chronic left knee 
disability since then.  The VA examiner pointed out that the 
findings from service were not significant and did not suggest 
chronic pathology.  The examiner considered the Veteran's claim 
of continuous symptoms since service and still concluded that it 
was not likely that current knee pathology was related to active 
duty.  The Board finds this evidence more probative than the 
Veteran's claim of continuity of symptomatology and the weight of 
the evidence is against a finding that the current left knee 
disorder is related to active service.

In conclusion, the claim of entitlement to service connection for 
a left knee disorder must be denied.  As the preponderance of the 
evidence is against the claim, the benefit of the doubt rule is 
not applicable.  38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 
54-56.

B.  Bilateral Hearing Loss

The Veteran is seeking service connection for bilateral hearing 
loss.  Hearing loss disability is defined by regulation.  For 
purposes of applying the laws administered by VA, impaired 
hearing will be considered to be a disability when the auditory 
threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 
Hertz is 40 decibels or greater; or when the auditory thresholds 
for at least three of the above 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 (2009).

On review, the Board finds that service connection for bilateral 
hearing loss is not warranted as there is no evidence of current 
hearing loss for VA compensation purposes.  In this case, 
audiological test in December 1982 for purposes of enlistment 
show hearing threshold levels as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
0
0
LEFT
20
0
5
0
0

An in-service audiometry test in October 1985 shows the following 
hearing threshold levels. 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
0
0
LEFT
40
35
40
40
35

In the "Remarks" section of the October 1985 in-service 
audiological report, the following was noted.  "Needs thorough 
test did not keep appt[.]"  It appears that there was no 
audiometric testing at separation from service.  

Post-service in September 2006, the Veteran had a VA audiological 
examination.  The audiologist noted that the claims folder was 
reviewed.  The Veteran reported that he noticed some difficulty 
understanding "speech in noise," especially if the talker is 
behind him.  He also reported that his military occupation 
specialty in the military was cavalry scout and he was exposed to 
noise from track vehicles and motor pools.  The Veteran stated 
that as a civilian his only reported occupational noise exposure 
was as a truck driver.  On examination, pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
20
20
LEFT
20
10
15
5
25

Speech audiometry revealed speech recognition ability of 100 
percent in the right ear and of 96 percent in the left ear.  The 
audiologist noted that for both ears, thresholds were within 
normal limits, and speech recognition scores were excellent.  The 
audiologist also noted that a previous otoscopy revealed copious 
amounts of cerumen.  The Veteran used a cerumenolytic at home and 
his external auditory canals at the time of the examination were 
free of cerumen.  The diagnosis was essentially hearing within 
normal limits, bilaterally.  The audiologist commented that 
configuration of thresholds noted in service in October 1985 for 
the left ear are not consistent with noise exposure.  It is more 
consistent with an occluded external auditory canal (e.g., due to 
cerumen impaction).  She commented further that there was no note 
indicating whether otoscopy was performed in-service but the 
initial date of the 2006 compensation examination was changed so 
that impacted cerumen could be removed from the external auditory 
canals.  Other possibilities for the thresholds noted in October 
1985 include equipment malfunction, and malingering.

Based on the foregoing, the Veteran does not have a current 
hearing loss for VA compensation purposes.  There is no current 
evidence of auditory threshold of 40 decibels or greater in any 
of the frequencies 500, 1000, 2000, 3000, 4000 Hertz, no evidence 
of auditory threshold of 26 decibels or greater for at least 
three of the above frequencies, and no evidence of speech 
recognition scores of less than 94 percent using the Maryland CNC 
Test.  Thus, the Veteran does not have hearing loss for VA 
purposes.

The Board notes that while an in-service audiological test 
reveals left ear hearing impairment in October 1985, VA examiner 
has opined that the threshold configurations from that test were 
consistent with cerumen impaction; and in light of the fact that 
cerumen impaction was noted in 2006 and current threshold levels 
are within normal limits.  The Board applies high probative value 
to the September 2006 VA audiology examination and the 
audiologist's opinion.  Specifically VA audiologist had the 
claims folder for review, she discussed the findings in the 
claims folder, obtained a reported history from the Veteran, and 
conducted a complete examination.  There is no indication that 
she was not fully aware of the Veteran's past medical history or 
that any relevant facts were misstated.  See Barr v. Nicholson, 
21 Vet. App. 303 (2007).  Absent a finding of a current hearing 
loss for VA compensation purposes, service connection will not be 
granted.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 
Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that 
"[a] service connection claim must be accompanied by evidence 
which establishes that the claimant currently has the claimed 
disability").   

The Board believes that the Veteran has presented credible 
testimony as to his exposure to noise during his period of active 
service.  The Veteran is certainly competent to describe symptoms 
of subjective hearing loss and such symptoms as is consistent 
with acoustic trauma he experienced during his active service.  
See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) 
(A Veteran is competent to testify to an in-service acoustic 
trauma, in-service symptoms of tinnitus, and post-service 
symptoms of tinnitus).  However, even medical professionals rely 
on audiometric testing to discern the presence of hearing loss.  
Hearing loss for VA compensation purposes is not the type of 
disorder that a layperson can provide competent evidence on 
questions of etiology or diagnosis.  See Robinson v. Shinseki, 
557 F.3d 1355 (2009).

In light of the above discussion, the Board concludes that the 
preponderance of the evidence is against the claim for service 
connection for bilateral hearing loss and there is no doubt to be 
otherwise resolved.  As such, the appeal is denied.  See Gilbert, 
1 Vet. App. at 54-56.

C.  Tinnitus

The Veteran is seeking service connection for tinnitus.  While 
the claims folder does not contain a diagnosis of tinnitus, the 
Board notes that tinnitus is readily observable by laypersons and 
does not require medical expertise to establish its existence, 
see Charles, 16 Vet. App. 370.

However, even considering the Veteran's reported tinnitus 
complaints as evidence of a current disability, the Board finds 
that service connection for tinnitus is not warranted.  
Significantly, there is no evidence of tinnitus complaints, 
treatment, or diagnoses during service, and there is no evidence 
of a nexus between any current tinnitus and service.  The Veteran 
did experience an acute left ear hearing impairment in service, 
which VA audiologist attributed to impacted cerumen of the left 
ear, but there was no mention of tinnitus.

In June 2009 VA audiologist was requested to conduct an "opinion 
only" review for complaints of tinnitus related to military 
noise exposure.  The audiologist noted review of the claims 
folder and specifically mentioned the audiology evaluation, 
performed by her, in September 2006.  She noted that at the time 
the Veteran stated that he had ringing-type tinnitus since 1987 
whenever he was in quiet surroundings.  The audiologist noted 
that service treatment records made no mention of tinnitus.  Nor 
was tinnitus shown on post service VA audiology examination in 
September 2006.  The audiologist opined that the Veteran's 
complaints of tinnitus are not related to noise exposure during 
military service.  She further opined that the etiology of 
complaints of tinnitus cannot be determined based on audiological 
findings.

The Veteran has indicated that his claimed tinnitus may be 
attributed to not wearing hearing protection when he went out to 
mortar ranges with the mortar guys.  See Hearing Transcript 
(Tr.), p. 5.  He also stated that he first noticed ringing in his 
ear in 1988 and thought it was just a part of growing old.  Tr. 
p.5.  As noted above, the Veteran is competent to provide 
testimony as to having some degree of tinnitus.  Charles, 16 Vet. 
App. 370 (regarding lay testimony of tinnitus); see also, e.g., 
Layno, 6 Vet. App. 465, 469 (a Veteran is competent to report 
symptoms because this requires only personal knowledge, not 
medical expertise, as it comes to him through his senses).  
However, he is not competent to provide an opinion regarding the 
cause of tinnitus.  Id.  Simply stated, his opinion regarding the 
etiology of his tinnitus lacks probative value; it does not 
constitute competent medical evidence.  See Routen v. Brown, 10 
Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 
(1992).  

The Federal Circuit has held that lay evidence is one type of 
evidence that must be considered and competent lay evidence can 
be sufficient in and of itself.  The Board, however, retains the 
discretion to make credibility determinations and otherwise weigh 
the evidence submitted, including lay evidence.  Buchanan, 451 
F.3d 1331.  As noted above, however, the Veteran did not complain 
of tinnitus at any time during service and the record is devoid 
of contemporaneously recorded medical or lay evidence of any 
findings indicative of tinnitus for many years after service.  In 
addition, the Veteran has not specifically indicated that 
pertinent symptomatology has been continuous since service.  In 
fact, his claim that he first noted the disability after service 
discharge suggests that it was probably not continuously 
symptomatic from service.  During service there was no history, 
complaints, treatment, or diagnosis of tinnitus.  In addition, 
after service, the record is devoid of contemporaneously recorded 
lay or medical evidence of any complaints, treatment, or clinical 
findings indicative of tinnitus until 2006, twenty years after 
the Veteran's separation from active duty service.  In November 
2006 the Veteran was seen at VA outpatient clinic with complaints 
of an earache and an assessment of pharyngitis was made.  There 
was no mention of tinnitus.  See Maxson, 230 F.3d 1330.

What the Veteran claims is that tinnitus is related to acoustic 
trauma he experienced in service.  However, the Board finds the 
VA examiner more competent to comment on the etiology of the 
tinnitus and the rationale, that acoustic trauma did not have a 
deleterious effect on hearing and probably did not cause the 
tinnitus is reasonable.  In view of the foregoing, the Board 
finds that the preponderance of the evidence is against the claim 
for service connection for tinnitus.  As the preponderance of the 
evidence is against this claim, the benefit of the doubt doctrine 
is not applicable and the Veteran's claim for service connection 
for tinnitus must be denied.  See 38 U.S.C.A. § 5107(b); Gilbert, 
1 Vet. App. at 49.

In Bryant v. Shinseki, --- Vet. App. ----, No. 08-4080 (Jul. 1, 
2010), the United States Court of Appeals for Veterans Claims 
(Court) recently held that 38 C.F.R. 3.103(c)(2) (2009) requires 
that the RO Decision Review Officer/Veterans Law Judge who chairs 
a hearing fulfill two duties to comply with the above the 
regulation.  These duties consist of (1) the duty to fully 
explain the issues and (2) the duty to suggest the submission of 
evidence that may have been overlooked.  Here, during the 
hearing, undersigned sought to identify any pertinent evidence 
not currently associated with the claims folder that might have 
been overlooked or was outstanding that might substantiate the 
claim.  Moreover, neither the Veteran nor his representative has 
asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor 
has identified any prejudice in the conduct of the RO/Board 
hearing.  By contrast, the hearing focused on the element(s) 
necessary to substantiate the claim(s) and the Veteran, through 
his testimony, demonstrated that he had actual knowledge of the 
element(s) necessary to substantiate his claim for benefits 
[Explanation].  As such, the Board finds that, consistent with 
Bryant, the undersigned complied with the duties set forth in 38 
C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim(s) 
based on the current record.


ORDER

Service connection for a left knee disorder is denied.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs