Citation Nr: 1136840	
Decision Date: 09/29/11    Archive Date: 10/11/11

DOCKET NO.  06-05 875	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a left knee disorder, to include residuals of trauma with anterior lateral rotary instability and left lateral meniscectomy.

3.  Entitlement to service connection for a low back disorder, claimed as secondary to a left knee disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1980 to November 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 Regional Office (RO) in Indianapolis, Indiana rating decision.

The Veteran's claim was remanded by the Board for additional development in April 2010.  The requested development having been completed, the matter again is before the Board.


FINDINGS OF FACT

1.  The preponderance of the evidence is against finding that the Veteran has a current hearing loss disability that is etiologically related to a disease, injury or event in service.

2.  An orthopedic examination at the time of entrance into service showed a history of bilateral knee surgery with residuals, confirmed by contemporaneous x-ray evidence, for which the Veteran currently was asymptomatic.

3.  An increase in the severity of Veteran's pre-service left knee disability during service has been demonstrated; however, clear and unmistakable evidence also demonstrates that such disability did not undergo a permanent worsening as a consequence of the temporary increase that occurred in service.

4.  The preponderance of the evidence is against finding that the Veteran has a low back disability that is etiologically related to a disease, injury, or event in service.



CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1131, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2010).

2.  A left knee disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1131, 1153, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2010).

3.  A low back disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1131, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the Veteran's Administration (VA) has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran 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(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); 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 Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

VCAA letters dated in November 2004 and May 2010 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letters included information on how to establish entitlement to service connection on both a direct and secondary basis.  The May 2010 letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for establishing entitlement to service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  In that regard, during a January 2007 RO hearing the Veteran indicated that he had attempted to obtain records regarding his claimed disabilities from private providers, but that the records had been destroyed.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010).  In this case, the Board notes that the Veteran was afforded a VA examination for his claimed hearing loss in March 2005.  In addition, pursuant to the Board's April 2010 remand the Veteran was afforded additional examinations for his claimed hearing loss and left knee disabilities in July 2010.  The resulting VA examination reports were based on a full review of the record, interview of the Veteran, and physical examination.  The Board, therefore, finds the VA examination reports to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for his spine.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

With respect to the Veteran's low back claim, the Board concludes an examination is not needed.  VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As will be discussed in greater detail below, the Board believes that there is no credible evidence suggesting an association between any alleged current low back disability and any event, injury, or disease in service.  Indeed, the Veteran claims that his low back disability was caused by his left knee disability.  As will be discussed, the Board finds that the Veteran's left knee disability pre-existed service and that the left knee disability was not permanently aggravated by his military service.  As there is no other indication of a connection between the Veteran's low back problems and his military service, VA is not required to provide the Veteran with a VA examination in conjunction with the low back claim.

The Board further concludes that in obtaining the July 2010 VA examinations, sending the Veteran additional notice pursuant to the requirements the Court laid out in Dingess, and associating VA treatment records from December 2007 with the claims file that the RO/AMC has complied with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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) (2010).  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 for certain chronic diseases, including hearing loss and arthritis, will be 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); 38 C.F.R. §§ 3.307, 3.309 (2010).  In this case, the Veteran was not diagnosed with hearing loss or arthritis of the left knee or low back in service or within one year of service and, therefore, service connection for any of the foregoing may not be granted on a presumptive basis.  

In the absence of presumption, to establish a right to compensation for a present disability, a Veteran must show: "(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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Bilateral Hearing Loss

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id at 159.

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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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.

Here, the Veteran alleges that he has current bilateral hearing loss due to in-service noise exposure, primarily from gas and diesel engines, secondary machinery, and bilge noise.  The Veteran's DD-214 indicates he attended engine school.  As such, the Veteran's reports of military noise exposure are consistent with the circumstances of his service and acoustic trauma is likely and may be presumed.  

The Veteran's service treatment records are absent for complaints, diagnoses, or treatment for hearing problems in service.  About half way through the Veteran's service, in April 1980, he denied hearing loss or ear problems and a contemporaneous audiogram showed no hearing loss for VA purposes.  A subsequent April 1980 audiogram showed similar hearing acuity.  Audiological testing was not performed at the Veteran's separation from service in November 1980.

After service, the Veteran brought a claim for entitlement to service connection for hearing loss in October 2004, more than 20 years after service.  He was afforded a VA examination in March 2005.  At that time, the examiner noted review of the claims file.  The examiner specifically noted that audiometric results from January 1980 and April 1980 showed hearing thresholds to be within normal limits bilaterally.  The Veteran reported bilateral hearing loss and tinnitus.  During service he noted exposure to noise from diesel and gas engines, secondary systems, and bilge noise, all without the benefit of hearing protection.  He indicated that he had minimal noise exposure occupationally after service.  The results of the audiological test are as follows, with puretone thresholds recorded in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
20
25
30
LEFT
25
25
20
25
20

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in both the right and left ear.  The average of the puretones between 1000-4000 Hz was 24 for the right ear and 23 for the left.  The examiner diagnosed mild high-frequency sensorineural hearing loss at 4000 Hz in the right ear and hearing thresholds within normal limits in the left ear.  The examiner concluded that because the Veteran's hearing was normal during his testing in service that it was less likely as not that his hearing loss was a result of noise exposure during service.

The Veteran was afforded another VA examination in July 2010.  The examiner noted review of the claims file, specifically outlining the in-service audiometric testing results.  The Veteran reported bilateral hearing loss and tinnitus, worsening in the right ear.  The Veteran again reported in-service noise exposure and post-service noise exposure in construction and a warehouse, where he wore hearing protection.  He denied recreational noise exposure.  


The results of the audiological test are as follows, with puretone thresholds recorded in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
25
20
30
LEFT
30
25
25
20
20

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in both the right and left ear.  The average of the puretones between 1000-4000 Hz was 26.25 for the right ear and 22.5 for the left.  The examiner diagnosed right ear mild sensorineural hearing loss and left ear hearing loss that was not disabling pursuant to VA regulation 38 C.F.R. § 3.385.  As to etiology, the examiner noted that the Veteran's in-service audiometric testing results were within normal limits bilaterally, but noted that no hearing test was conducted at the Veteran's separation in November 1980.  The examiner observed that the next hearing test of record was from March 2005, at which time the Veteran had mild loss of the right ear with levels that did not meet VA criteria for a hearing loss disability and normal hearing for the left ear.  In addition, the Veteran had reported some post-service occupational noise exposure, with the use of hearing protection.  Based on the foregoing, the examiner concluded that it was unlikely that the Veteran's current hearing loss was due to his military service.

With respect to the Veteran's claimed left ear hearing loss, the Board notes the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder.  See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  While the Board recognizes the Veteran's sincere belief in his claim of left ear hearing loss, as explained above, the competent medical evidence of record does not show the Veteran to have a current left ear hearing loss disability as defined by 38 C.F.R. § 3.385.  Thus, there may be no service connection for this claimed disability on either a presumptive or direct basis.  

With respect to the Veteran's right ear hearing loss, the Board recognizes the Veteran has a current right ear hearing loss disability as defined by 38 C.F.R. § 3.385.  However, having reviewed the complete record, the Board concludes the preponderance of the evidence is against finding that any current right ear hearing loss disability was related to in-service noise exposure or other incident of military service.  

The Board finds the opinions expressed in the July 2010 VA audiologist's examination report credible and probative.  The report was based on a review of the claims file, interview of the Veteran, and audio examination.  Further, a complete and through rationale is provided for the opinions rendered.  The examiner considered the Veteran's contentions, but concluded that the combination of the hearing acuity within normal limits during service, more than 20 years after service in March 2005, and the Veteran's reported post-service occupational noise exposure with hearing protection made it less likely than not that the current right ear hearing loss disability was related to his military service.  The examiner's conclusions are fully explained and consistent with the evidence of record.  Consequently, the Board finds the July 2010 VA examination report to be the most probative evidence of record as to whether his current right ear hearing loss disability is related to service.

The Board has considered whether self-reported continuity of symptomatology of hearing loss dating back to service would be sufficient to warrant service connection.  In this regard, the Veteran is certainly competent to report that he experiences difficulty hearing.  See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002).  However, even where a veteran asserts continuity of symptomatology since service, he is not necessarily competent to establish a nexus between the continuous symptomatology and the current claimed condition.  See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495- 98 (1997).  In other words, even accepting the contention that the Veteran suffered from difficulty hearing during and since service, the Board finds that the opinion of the competent health care provider to be the most probative evidence of record as to the relationship between the Veteran's current right ear hearing loss as demonstrated on audiometric testing and his military service, and the Board is of the opinion that this opinion ultimately outweighs the Veteran's lay reports of continuity of symptomatology since service.  The Board finds the Veteran's contentions especially problematic in light of the March 2005 audiometric testing results that did not show a right ear hearing loss disability as defined by 38 C.F.R. § 3.385.  Moreover, the Board notes that the Veteran brought multiple claims for entitlement to service connection for his left knee disability after service.  At those times, however, the Veteran did not bring a claim for hearing loss.  The Board finds it reasonable to conclude that if the Veteran was experiencing decreased hearing acuity from service, as he now claims, that he would have brought a claim for hearing loss at the time of his multiple left knee claims.  

In summary, right ear hearing loss was not diagnosed until nearly 30 years after service and he has not been diagnosed with left ear hearing loss for VA purposes.  No medical professional, moreover, has ever otherwise linked the Veteran's current right ear hearing loss to service, and, in fact, there is medical evidence to the contrary.  As discussed above, the Board finds the opinions of a trained medical professional regarding etiology of significantly more probative weight than the lay contentions of the Veteran made more than 20 years after service and in pursuit of a claim for compensation benefits.  In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).

Left Knee

The Veteran alleges that he had surgery on his left knee prior to entrance into service, which had completely healed and gave him no problems.  Several months into service, the Veteran asserts that he began to have problems with his left knee that either were unrelated to the original injury or that a pre-existing left knee disability had been permanently aggravated by his military service.  After service, the Veteran has reported continued left knee problems to the present.

The Board notes that the Veteran's service treatment records indicate that as part of his medical examination at entrance into service, based on the Veteran's reports of pre-service bilateral knee surgeries, he was provided an orthopedic examination and x-rays to evaluate his knees.  The January 3, 1980 evaluation of the Veteran's left knee noted a 1979 left knee injury.  Contemporaneous x-rays were indicative of old trauma and/or surgery, but were essentially within normal limits.  Physical examination revealed laxity in the anterior drawer and crepitus on forward range of motion, but that the knee was stable with a well-healed incision scar.  The examiner's assessment was status post bilateral knee surgery with residuals; however, the examiner found the Veteran fit for duty.  

Every veteran shall be taken 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).  As a pre-existing left knee disability was noted on examination for entrance into service in January 1980, the presumption of soundness at entrance into service does not apply.  See id.

A pre-existing injury or disease will be considered to have been aggravated by active military 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.  Aggravation may not be conceded, however, where the disability underwent no increase in severity during service.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010).  

In this case, there is credible evidence of record indicating that the Veteran's pre-existing left knee disability underwent an increase in severity during service.  In that regard, a December 1979 letter from a private physician noted a February 1979 arthroscopy and lateral meniscectomy of the left knee, but that the Veteran had been released from the physician's care and told to return only in the event of further problems.  The Veteran did not complain about knee pain during his training at Great Lakes.  The Veteran first complained of left knee pain in approximately July 1980 after his transfer onboard ship in Hawaii, when he reported constant left knee pain.  At that time, he discussed his pre-service surgery and his feeling that he was unable to perform his job duties, but did not report any in-service injury.  Prior to examination the impression was a possible ligament tear, but after examination the assessment was internal derangement of the left knee with marked ligamentous laxity.  About a week later in early August 1980, the Veteran stated that he injured his right knee while marching in engineman school 2 months previously, but that he was able to continue.  With respect to the left knee, the Veteran stated that he had constant lateral pain at the fibular head.  Again, he reported his pre-service left knee injury, but did not report any in-service injury to the left knee.  On examination, the Veteran had tenderness at the head of the fibula and moderate anterolateral rotary instability.  There is some contradictory information in the record, as in the assessment portion the examiner noted that the Veteran had reinjured his left knee two months prior and that it did not require surgery.  The examiner noted that, while not clear, in the examiner's best judgment the Veteran's pre-existing left knee disability had not been permanently aggravated by his military service.  The examiner recommended permanent restricted duty.  Later in August 1980, the Veteran submitted an accident report, wherein he indicated that he had been injured while marching and stepping in a hole in the road.  He did not indicate specifically what he had injured in this incident.  A Medical Board recommendation discussed the above.  In addition, it noted that the Veteran had reinjured his left knee in service by tripping in a hole while marching in late May 1980, specifically a hyperextension and medial inversion injury.  At that time, the Veteran claimed that his current left knee problems were unrelated to his prior left knee surgery, but had been caused by stepping in the hole while marching in May 1980.  After examination, the Medical Board's diagnosis was left knee with residual anterior lateral rotary instability, probably not service aggravated.  The Medical Board found the Veteran unfit for duty for a condition not incurred in service nor aggravated by service.  Despite the final finding of no aggravation, however, the Board concludes that the evidence of additional injury in service, as well as the documented evidence of ongoing complaints in contrast to the asymptomatic nature of the disability at enlistment, supports the conclusion that the disability underwent an increase in severity in service.

Having found that the preexisting disability underwent an increase in severity in service, the Board must conclude that the presumption of aggravation applies.  Under such circumstances, that presumption can only be rebutted by clear and unmistakable evidence showing that, despite the increase that occurred in service, the disability was not permanently aggravated.  38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004).

In this case, for the reasons and bases set forth below, the Board finds that there is clear and unmistakable evidence that, although the Veteran's left knee disability underwent an increase in severity during service, such increase was temporary and did not result in permanent aggravation of the pre-existing left knee disability.

In this regard, the Board acknowledges that the record includes statements from the Veteran that his left knee had been permanently aggravated by his military service, starting with the May 1980 incident where he had stepped in a hole while marching to training class.  In March 1981, after service, the Veteran reported experiencing constant pain in the left knee, exacerbated by prolonged standing, kneeling, and running.

However, private treatment records from October 1981 also show a post-service workplace injury in September 1981, where the Veteran slipped and fell on a wet spot at work and incurred a jamming and rotary type injury to the left knee.  In addition, a February 1983 treatment record discussed a second post-service workplace injury to the left knee, where the Veteran fell when a ladder twisted at work.  

The Veteran's father also submitted a letter, dated in August 2006, which noted that following his pre-service left knee injury the Veteran had fully recovered and was able to engage in sports and other activities without discomfort or other problems.  The Veteran's father stated that he was told the Veteran reinjured his left knee while marching in service.  He also noted that he had witnessed the Veteran's ongoing left knee problems from service.  

The Veteran was afforded a VA examination in July 2010.  The examiner noted review of the claims file.  The examiner extensively discussed the Veteran's service treatment records discussing and evaluating his left knee.  The Veteran reported that he had undergone a left total knee arthroplasty in January 2010.  The examiner also noted the Veteran's report of injuring his left knee when stepping in a pothole while marching and wrenching the knee, as well as a post-service torn ACL in 1983.  The examiner diagnosed left knee osteoarthritis, status post left total knee arthroplasty.  The examiner concluded that the Veteran did have a left knee injury that pre-existed his military service, specifically status post left knee arthroscopy and arthrotomy with lateral meniscectomy in 1979, and that the condition was not permanently increased in severity during the Veteran's period of service.  As to rationale, the examiner noted that the in-service treatment providers' assessments indicated that the Veteran's problems were related to a pre-existing left knee injury and not the result of aggravation from military service.  The examiner also opined that the Veteran's work history that included construction work from shortly after separation from service in 1980 until 1983 and again from 1984 to 1987 suggested that there was no aggravation in service.  Given that the Veteran was able to obtain and maintain work in a very physically demanding and laborious field for several years almost immediately after separation from service was suggestive to the examiner.  If the Veteran's left knee injury had been permanently aggravated by his military service, the examiner opined that it would have been less likely that he would have been able to withstand such physical labor for such a long period of time.  The examiner also provided an opinion that it was less likely than not that the Veteran's current severe osteoarthritis, status post total knee arthroplasty, was caused by or a result of his military service.  The examiner acknowledged that the etiology of the Veteran's left knee problems were complex, but the examiner noted that the in-service complaints were determined to be part of a pre-existing disability that were not aggravated by service.  In addition, the examiner considered the Veteran's post-service MCL tear and manual laborious work spanning 20 years to be more likely the causes of his left degeneration resulting in replacement.

The Board finds the July 2010 VA examiner's opinions very probative.  The examiner's opinions were based on an interview with the Veteran, review of the claims file, physical examination, and diagnostic testing.  Significantly, the VA examiner provided a detailed description as to the current nature of the Veteran's left knee disability and a thorough explanation as to why it was less likely than not that such disability was related to his military service.  Moreover, the examiner provided a thorough explanation as to why the Veteran's pre-existing left knee disability was not aggravated by his military service.  Specifically, the examiner noted that the in-service treatment providers concluded that the Veteran's left knee problems were due to a pre-existing disability and not due to one of the reported incidents of service.  Moreover, the Veteran began work in physically demanding fields like construction almost immediately after service, which did not support a conclusion that his pre-existing left knee disability was aggravated by service.  In addition, the examiner attributed his current left knee disability to his 20 years of working in physically demanding jobs and his post-service MCL tear and repair.  The Board finds these conclusions thorough with sufficient rationale that is supported by the evidence of record.  As such, the Board affords the July 2010 VA examination report significant probative weight.

Moreover, although the July 2010 VA reviewer did not use the term "clear and unmistakable" when opining as to whether the Veteran's pre-existing left knee disability was permanently aggravated by the Veteran's military service, the Board looks to the comprehensive examination report, detailed discussion of the Veteran's in-service and post-service medical history, and the thorough rationale contained throughout the opinion in concluding that the examiner's opinion is unequivocal in its finding that the Veteran's pre-existing left knee disability was not permanently aggravated by the Veteran's military service.  See Emenaker v. Peake, 551 F.3d 1332, 1335 (Fed. Cir. 2008) (finding that the "least as likely as not" language was not fatal to the medical opinion as long as there was an adequate explanation of whether the opinion rises to the level of clear and unmistakable evidence despite the equivocal phrase).

The Board also notes the in-service Medical Board determination noted only that the Veteran's pre-existing left knee disability "probably" was not aggravated by service.  In that regard, the Board acknowledges that such an assertion does not rise to the level of "clear and unmistakable."  That said, the Board notes that the Medical Board determination was made at a period immediately after the Veteran's left knee pain had flared-up and prior to its resolution.  As such, the Board concludes that the findings reported at the time are probative to determining whether an increase in severity occurred during service (as discussed above), but not in determining whether a permanent aggravation occurred.  By contrast, the July 2010 VA examiner's opinions were rendered after the left knee problems had apparently resolved to the point that the Veteran was able to perform about 20 years of physically laborious employment and with consideration of both the in-service treatment records and post-service records.  As such, the Board does not find that the language employed in the Medical Board determination of any probative weight, especially in light of the July 2010 VA examination report. 

The Board acknowledges the Veteran's and his father's assertions either that his pre-existing left knee disability was aggravated by service or that he developed an entirely new left knee disability as a result of stepping a hole in May 1980.  Certainly, these individuals can attest to factual matters of which they had first-hand knowledge, such as subjective complaints of pain, and their testimony in that regard is entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, even though a lay person is generally competent to describe experiencing a continuity of symptomatology since service, that lay person is not necessarily competent to link the continuous symptomatology to a specific current condition or aggravation of that current condition.  See generally Savage v. Gober, 10 Vet. App. 488, 495 (1997).  

In this case, the record shows that the Veteran complained of knee pain during service, that he sustained several injuries shortly after separation, and that he worked for the two decades following service in a physically demanding job.  Under such circumstances, the Veteran's reports of a continuity of symptomatology are, in fact, nore necessarily inconsistent with the findings of the VA examiner discussed above.  As noted, the VA examiner considered the complaints in service, and concluded based on the clinical findings at the time that those complaints were attributable to his preexisting disability, rather than to any incidents of service.  The examiner further conducted a thorough examination as to the current nature of his disability, and took into account the nature of his long-term employment following separation.  The examiner concluded that the fact that the Veteran began work in physically demanding fields like construction almost immediately after service did not support a conclusion that his pre-existing left knee disability was permanently aggravated by service, despite the complaints noted in service, and that his current left knee disability was more likely due to his 20 years of working in physically demanding jobs and his post-service MCL tear and repair.

In this instance, therefore, the Veteran and his father, as laypersons, may be competent to report his history of symptoms and his current complaints, but they have not been shown to be capable of making medical conclusions, especially as to such as determining the nature and etiology of the underlying disabilities responsible for his ongoing knee problems, to include a determination as to whether or not such underlying disabilities were permanently worsened during service.  As such, the Board does not find the Veteran or his father competent as to their representations as to a permanent aggravation of his disability or onset of a new disability in service and the Board ascribes far more weight to the conclusions of the July 2010 medical professional who concluded that the Veteran's pre-existing left knee disability was not aggravated by service and that his current left knee disability was not otherwise caused or aggravated by his military service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise).

Moreover, the mere manifestation of symptoms such as pain with use, does not demonstrate that the underlying left knee disability underwent a permanent increase in severity in service.  See generally Townsend v. Derwinski, 1 Vet. App. 408 (1991).  While the Veteran had some instability noted in the left knee on separation, there also was noted laxity in the left knee at entrance.  Thus, there is no clear indication of aggravation in that regard.  While the Veteran indicated that the left knee problems began following stepping in a pothole in the street while marching, as discussed extensively by the July 2010 VA examiner, the service treatment providers at the time clearly attributed the Veteran's symptoms to his pre-existing disability and not to any in-service injury.  The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation.  To the extent that the Veteran's representations of increased pain in service represent an worsening in service, the Board has acknowledged as such above; nevertheless, the July 2010 VA physician's opinion shows clearly and unmistakably that the Veteran's current left knee problems are not the result of any aggravation of his preexisting disability during service.

In addition, January 1980 x-rays did not show left knee arthritis and there is no indication that arthritis was shown, diagnosed, or otherwise had its onset in service.  The Veteran's current arthritis, therefore, must have developed at some point after service.  This conclusion is supported by the July 2010 VA opinion, which determined that the Veteran's arthritis and other left knee problems were more likely due to his post-service ligament injuries and his multiple years of physically demanding employment and not due to the Veteran's in-service problems.  

In summary, the credible and probative evidence of record clearly and unmistakably establishes that the Veteran's left knee disorder, to include residuals of trauma with anterior lateral rotary instability and left lateral meniscectomy, pre-existed service and was not aggravated beyond its natural progression by service.  Furthermore, the preponderance of the evidence also shows that the Veteran's current left knee arthritis, diagnosed multiple years after service, is not otherwise related to his military service.  As noted, the VA examiner found that such a relationship was less likely than not, and no doctor has ever opined to the contrary.  While the Veteran has credibly reported left knee pain with recurring onset in service, the medical evidence of record establishes that any increase in disability occurred after the Veteran's service and the July 2010 examiner specifically concluded that the pre-existing left knee disability was not aggravated by service and that his current problems were more likely due to his post-service ligament injuries and multiple years of physically demanding labor.  Thus, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).

Low Back

Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. § 3.310 (2010).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).  

The Board observes that the provisions of 38 C.F.R. § 3.310 were amended effective as of October 20, 2006, during the pendency of the instant appeal.  See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although the VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made.  This had not been the VA's practice and thus suggests that the recent change amounts to a substantive change in the regulation.  For this reason and as the Veteran's claim was pending before the regulatory change was made, the Board will consider the Veteran's claim under the prior version of 38 C.F.R. § 3.310 as it is more favorable to the Veteran.

The Veteran alleges that his left knee disability caused a low back disability, specifically problems with the sciatic nerve causing pain.  The Board acknowledges the Veteran's claim, but notes, as discussed above, that the Veteran is not service-connected for a left knee disability.  As the Veteran is not currently service-connected for a left knee disability, service connection on a secondary basis for a low back disability is not warranted.  See 38 C.F.R. § 3.310.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes also that the Veteran is not entitled to service connection for a low back disability on a direct basis.  See 38 C.F.R. § 3.303.

The Veteran's service treatment records do not indicate complaints, treatment, or diagnoses of a low back disability in service.  Indeed, the Veteran does not claim that his low back problems began in service or within one year of service.  

After service, the claims file does not include a diagnosis of a current low back disability or treatment for the low back.  The Veteran indicated during the January 2007 Board hearing that he had sought treatment from his private family practitioner, but that without health insurance he could not seek treatment to the extent that he desired.  At that time, the Veteran was advised that he was eligible for treatment through the VA.  Significantly, there is no evidence that the Veteran has since sought treatment for his low back from the VA and the VA medical records do not indicate a current diagnosis of a low back disability.  Even assuming for the purpose of this decision that the Veteran has a current diagnosis of a low back disability, however, the Veteran's claim would still fail as there is no indication of a continuity of low back problems from service or other indication that any current low back disability was caused or aggravated by the Veteran's military service.  No medical professional has ever linked any disability of the low back to service.  Indeed, the Veteran contends that his private physician specifically has linked his low back disability to his left knee disability.

In summary, no current low back disability has been linked to the Veteran's military service by any medical professional and, as noted, the Veteran's left knee disability is not service-connected.  In addition, the Veteran has not claimed a continuity of low back problems from service.  Thus, to the degree any current low back disability developed secondary to his left knee disability, service connection is not warranted.  There is no contemporaneous medical evidence of a low back disability during service and there is no medical evidence linking any low back disability to military service or a service-connected disability.  Consequently, service connection for a low back disability is not warranted on a direct basis or as secondary to a left knee disability.

In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for a left knee disorder, to include residuals of trauma with anterior lateral rotary instability and left lateral meniscectomy, is denied.

Entitlement to service connection for a low back disorder is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs