Citation Nr: 1040189 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 04-29 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for left knee disorder. 3. Entitlement to service connection for neck disorder. 4. Entitlement to service connection for right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to February 1984. This appeal arises from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran in his December 2002 notice of disagreement limited the issues on appeal to those set out on the title page. The Board of Veterans' Appeals (Board) in a July 2007 decision denied service connection for disorders of the right knee and left shoulder. The issues of service connection for hearing loss, and disorders of the neck, left knee and right shoulder were remanded for further development. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the veteran as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. VA in compliance with the development ordered by the Board requested the records of treatment identified by the Veteran, arranged for his examination and obtained medical opinions. FINDINGS OF FACT 1. Current hearing loss disability has not been linked by competent evidence to service. 2. The Veteran sustained a left knee injury prior to service, which did not increase in severity during service. 3. The Veteran did not sustain a neck injury in service, or for years after service, and no competent evidence links current disability to service. 4. The evidence does not reflect a diagnosis of a current right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2009). 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2009). 3. The criteria for service connection for a neck disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2009). 4. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must first address VA's duty to notify and assist claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The Veteran filed his claims for service connection in July 2002. In August 2002 the RO sent the Veteran a letter which explained what the evidence must show to support his claims for service connection, what was needed from the Veteran, and that VA could assist by requesting evidence for the Veteran. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that VCAA notice of requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a service connection claim. A March 2010 letter explained how VA assigns disability ratings and effective dates. The Veteran's claim was remanded in July 2007 by the Board and additional development was ordered. In August 2007 a letter was sent to the Veteran informing him of what was still needed from him. The Veteran responded in September 2007 and submitted authorization for VA to obtain his records from Dr. Hubert Brooks, and Dr. David H. Arnold. The RO obtained the Veteran service treatment records and his records from Dr. Brooks. There was no response to the request for records from Dr. Arnold. A November 2009 letter to the Veteran informed him that no records had been received from Dr. Arnold, and that is was his responsibility to see that there were submitted. The Veteran has not identified any other relevant evidence. The Veteran has been afforded VA examinations and medical opinions have been obtained. Given these facts, the Board finds that no further notification or assistance is necessary. SERVICE CONNECTION Relevant Laws and Regulations: To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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 frequencies 500, 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 (2009). The 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 entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (2009). A preexisting 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. § 353 (West 1991); 38 C.F.R. § 3.306 (2009). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis and sensorineural hearing loss, when they are manifested to a compensable degree within the initial post service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Courts have held that generally, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis. The Veteran contends his current hearing loss is related to noise exposure in service. VA examination in February 2010 provides evidence of a current diagnosis of a bilateral hearing loss by VA standards. 38 C.F.R. § 3.385 (2009). Pure tone thresholds in each ear included 40 decibels in more than one frequency. The Veteran has provided evidence of noise exposure in service which he states caused him to develop a hearing loss. The results of the audiometric evaluations in service and after his separation do not show anything other than that his hearing was normal at service separation. The third element required to support finding service connection is evidence of a nexus between the current hearing loss and service. The Veteran has not presented any evidence which establishes he has any special knowledge or training which qualifies him to render a medical opinion. The only competent evidence of record addressing any nexus between the current hearing loss and service is the opinion of the VA audiologist who stated it was less likely than not. In the absence of competent medical evidence linking the current hearing loss to service, service connection is not warranted. The Veteran asserts he injured his left knee in service. While no left knee disorder was found at service entrance or inspection, the claims folder contains private medical records from September 1981 that demonstrate the Veteran sustained a blow to the left knee and a hyperextension injury in September 1979. While the 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 entrance into service, in this instance clear and unmistakable evidence demonstrates the Veteran suffered a blow to the left knee and a hyperextension injury prior to entering the service. 38 U.S.C.A. § 1111 (West 2002). The question then becomes whether there is evidence the left knee disorder increased in severity in service. The only complaints about his left knee in service appear in the January 1983 service treatment record. The Veteran reported having stiffness for one day. Both the weakness and pain complained of in the left knee were present and noted when he injured his knee prior to service entrance. There is no evidence in the record of any new or additional pathology of the left knee. An opinion was sought as to whether there was any increase in the underlying pathology in service. The VA physician who examined the Veteran stated there was inadequate documentation to support that there had been an increase in severity of the left knee disorder in service. Without evidence showing an increase in severity in service there is no presumption of aggravation in service. Akins v. Derwinski, 1 Vet. App. 228 (1991). In Hunt v. Derwinski, 1 Vet. App. 292 (1991), it was held that that when there is a temporary worsening of symptoms and the condition itself did not worsen or the disability remained unaffected by these flare-ups there has been no aggravation of the preexisting condition. The Board has concluded the evidence demonstrates the Veteran's left knee disorder pre-existed service entrance and did not increase in severity in service. Therefore, service connection is not warranted. As to the Veteran's claims he injured his neck in service while running the obstacle course, there is no documentation in service of any such event. The only complaints of neck pain in service, appear in conjunction with symptoms of a strep throat in July 1982, a complaint of total back pain in August 1982 with only normal findings, and while he was suffering from a virus or gastroenteritis in February 1983. There is no reference to any disorder of the neck in service or during the initial post service year. There is no diagnosis of arthritis or degenerative joint disease of the cervical spine in service or during the initial post service year. In fact there is evidence of post service cervical diskectomy and neck injury sustained in February 2002. (The records from an auto accident in Germany in service show no evidence of neck pain, and the Veteran sustained only an abrasion or laceration to the left aspect of his mandible as noted in his November 1982 service treatment records.) While there is certainly ample evidence of post service cervical disorders, there is no evidence in service of a neck injury. The events recounted by the Veteran, when compared with the contemporaneous record do not demonstrate any injury to the neck was sustained in service. In the absence of evidence of a neck injury in service, combined with no competent medical evidence linking his current cervical spine degenerative disk disease with service, there is no basis for granting service connection for a neck disorder. The Veteran states he injured his right shoulder in service. June 1983 service treatment records document he was treated for complaints of right shoulder pain. Although the Veteran gave a history of a prior right shoulder separation, the Veteran was examined at service entrance in April 1982 and at physical inspection in July 1982 and no disorder of the upper extremities was recorded on his examination report. The veteran is therefore afforded the presumption of soundness. 38 C.F.R. § 3.304 (b)(2009). The presumption of soundness only attaches where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinsk,1 Vet. App. 225, 227 (1991). The references in the service medical records to a history of a right shoulder separation are inadequate to rebut the presumption of soundness. Gahman v. West, 13 Vet. App. 148 (1999). The reports of medical history given by the veteran for the purposes of treatment are insufficient to rebut the presumption of soundness. Parker v. Derwinski, 1 Vet. App. 522 (1991). Thus, it is presumed there is no disorder of the right shoulder disorder at service entrance. However, there is only the one entry, in June 1983, of right shoulder pain in service, but no subsequent complaints, and no disorder of the right shoulder at separation. Further, there is no current diagnosis of degenerative joint disease of the right shoulder, only of the left. Significantly, the X-rays of the right shoulder in service found no abnormalities, and there is also no evidence of arthritis of the right shoulder during the initial post service year. In fact, VA examination in March 2010 did not include any diagnosis of a right shoulder disorder, only a left shoulder disorder. The glenohumeral joint was normal and there was no soft tissue, bone or joint abnormality. While some tenderness was noted on examination and questionable impingement, no diagnosis was made of any disorder of the right shoulder. In addition, the private medical records showed only left shoulder pathology. The only reference to the right shoulder was of a lipoma or tumor on his back in the area of his right shoulder blade, no disorder of the shoulder joint itself is reported. Regardless of the theory of entitlement, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service- connected disease or injury to cases where such incidents resulted in disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of a current diagnosis of a right shoulder disorder, service connection is not warranted. ORDER Service connection for hearing loss is denied. Service connection for a left knee disorder is denied. Service connection for a neck disorder is denied. Service connection for a right shoulder disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs