Citation Nr: 1237103	
Decision Date: 10/25/12    Archive Date: 11/09/12

DOCKET NO.  09-11 248A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a right knee disability.

2.  Entitlement to service connection for a right ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from December 1983 to August 1986.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Waco RO.

In August 2011, a Travel Board hearing was held before the undersigned; a transcript of this hearing is associated with the claims file.

The case was remanded by the Board in September 2011 for additional development.

The Veteran also appealed the denial of service connection for a left knee disability, but since an August 2012 rating decision granted service connection, the matter is no longer before the Board for consideration.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).

The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file. 



FINDINGS OF FACT

1. A preponderance of the evidence reflects that the Veteran does not have a current right knee disability that is caused by an injury in service or that is related to any other incident of his service; arthritis was not manifested in the first post service year.

2. The Veteran has not been shown to have right ear hearing loss that manifested in service or within one year thereafter, and he does not currently have a right ear hearing loss disability.


CONCLUSIONS OF LAW

1. The Veteran's right knee disability was not incurred in or aggravated in service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). 

2. A claimed right ear hearing loss disability was not incurred in or aggravated in service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").
The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).

VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1) (including as amended effective on May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)).



VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). 

A March 2008 letter informed the Veteran of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, and the assistance that VA would provide to obtain information and evidence in support of his claims. He was also given notice of disability ratings and the effective dates of awards.

The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). 

The service treatment records are associated with his claims file, and VA has obtained all pertinent records that could be obtained. Pursuant to the Board's September 2011 remand instructions, additional treatment records were sought and the Veteran underwent VA examinations that respond to the Board's remand. See Barr v. Nicholson, 21. Vet. App. 303 (2007); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA's duty to assist is met.


Merits of the Claims

Service connection will be granted if it is shown that the veteran suffers from 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. § 1131; 38 C.F.R. § 3.303. 

Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 




In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2011).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

RIGHT KNEE

The Veteran contends that he has a current right knee disability that is related to military service.  He states that he sustained injuries to his knee in service when he fell off a truck.  See December 2009 VA Form 9.  He reported receiving treatment after incurring the injury but not directly after he separated from service.  See April 2011 hearing transcript.

A review of the Veteran's service treatment records show that he did fall off a truck in May 1984, but that the only injury reported at that time was to the left leg.  The records do show, however, that he reported having right knee trauma in June 1986.  He reported that a twisting injury had occurred while playing basketball 2 days earlier and that the pain was constant.  The assessment was tendonitis. However, on July 1986 service discharge examination, no right knee complaints, findings, or diagnoses are noted.

A September 2009 VA examination included an x-ray report of both knees that revealed that the bones and joints were intact without evidence of fracture, dislocation, or osseous mass lesion. The knee joint was within normal limits and the only significant degenerative change was sharpening of the tibial spine, which could be seen with disease of the anterior cruciate ligament. The patellofemoral joint was also within normal limits except for small marginal osteophytes.  The examiner stated that the Veteran had mild degenerative changes of the patellofemoral joints.

A May 2010 VA treatment record indicates that the Veteran had pain in multiple joints including his knees. The assessment was arthritis.  

On October 2011 VA examination, the Veteran was diagnosed with having right knee strain. The Veteran was also noted to have arthritis. However, the examiner opined that the Veteran's right knee disorder was less likely than not incurred in or caused by service. The rationale was that the Veteran was treated once for a right knee twisting injury in service and that there were no further records that reflected treatment. At the time of the initial treatment there was no evidence of significant injury and the knee was shown to be stable on the current examination. The physician added that the Veteran did not have a current history of symptoms consistent with anterior cruciate ligament instability and the examination did not show anterior cruciate laxity. Regarding the radiology comments in September 2009, the physician stated that there is no evidence of ACL disease clinically or historically and that without clinical findings there was no medical indication for an MRI of the knee. 

The record contains evidence of current right knee disorders in the form of arthritis and knee strain yet despite there also being evidence of a right knee injury in service, the competent evidence of record tends to show that neither the injury nor any other incident of the Veteran's service is etiologically related to his current right knee disabilities.

The Veteran's contention as to service connection has been investigated by competent medical authority as in the third prong of Jandreau and is without merit. After the initial treatment for the right knee injury, there are no further treatment records in service that pertain to the Veteran's right knee. Notably, his separation examination and medical history reports are also silent for right knee complaints, findings, or diagnosis. This evidence indicates no continuing right knee disorder.

In some cases, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, the presumption does not apply in this case because the Veteran was not diagnosed with arthritis in service and the evidence does not show that it manifested to a compensable degree within one year of separation. Id.  

The Veteran does not allege nor does the evidence show that he sought medical treatment after he separated from service. Nevertheless, he asserts in his hearing testimony that he had continuing symptoms after service that went untreated.

The Board finds that the Veteran's lay assertion is less probative than other evidence of record. His separation examination is negative for right knee complaints, findings, or diagnosis. This diminishes the probative value of the Veteran's assertion that he continued to have right knee problems after the initial injury in service. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran).

There is little post-service medical evidence that refers to the right knee and the earliest documented evidence is dated after the Veteran raised his claim for service connection. The earliest indication of a right knee problem was when he raised his claim in 2006, which was fully 20 years after he separated from service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

His assertions of earlier treatment at the Oklahoma VA Medical Center are unfounded and not credible since the facility indicated that it had no treatment records for the Veteran between August 1986 and March 2008. 

The only competent nexus evidence was provided by the October 2011 VA examiner who provided an opinion that is against the claim. The opinion is highly probative given that the examiner reviewed the record, examined the Veteran, and supported the opinion with adequate rationale.  Thus, the evidence against the Veteran's claim is more probative than the Veteran's assertions.

For these reasons, a preponderance of the evidence is against a finding that the Veteran's current right knee disabilities are due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 




RIGHT EAR HEARING LOSS

The Veteran contends that he has right ear hearing loss that is related to his service. Because the Veteran's level of hearing loss in his right ear does not meet the regulatory threshold to be considered a disability for VA purposes, service connection for the right ear will be denied. 

For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz  is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Veteran's DD Form 214 shows that his military occupational specialty was indirect fire infantryman.

The Veteran's service treatment records include an August 1983 enlistment audiological examination that shows pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
0
LEFT
/
/
/
/
/

An audiological evaluation in May 1984 indicates his hearing was evaluated after exposure to noise duties. Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
10
LEFT
/
/
/
/
/

However, the record also notes that the Veteran was issued hand formed earplugs.

On June 1986 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



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

On July 1986 service discharge examination pure tone thresholds, in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
5
LEFT
/
/
/
/
/

On the associated medical history report there are no complaints, findings, or diagnosis of right ear hearing loss.   

On September 2009 VA audiological examination, the Veteran's claims file was reviewed and pertinent aspects of his medical history were noted that indicated the Veteran's right ear hearing was within normal limits throughout his period of service.  The Veteran denied using hearing protection during his service - a contention that is accorded no credibility, given that he was issued such hearing protection as noted above, and as could be expected given his peacetime service. 38 U.S.C.A. § 1154(a) (West 2002) (providing that in each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence). 


On audiological examination, pure tone thresholds, in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
20
20
LEFT
/
/
/
/
/

The average pure tone threshold was 16 in the right ear.  Speech audiometry revealed speech recognition ability of 100 percent in right ear. 

Although the VA examiner opined that the Veteran's bilateral hearing loss was at least as likely as not secondary to acoustic trauma from his military experience, the opinion is inadequate with respect to the right ear since the Veteran was not shown to have a hearing loss disability.  Moreover, the rationale provided to support the opinion was based on a finding that there was a decrease in hearing sensitivity in the left ear during his service; the examiner made no reference to the right ear in the rationale.

On October 2011VA audiological examination, pure tone thresholds, in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
15
25
LEFT
/
/
/
/
/

The average pure tone threshold was again 16 in the right ear.  Speech audiometry revealed speech recognition ability of 100 percent in right ear. 

The examiner diagnosed the Veteran with having normal hearing.  The audiologist noted that the Veteran's service treatment records revealed normal right ear hearing at the beginning and end of his service and that his hearing was currently within normal limits.  Thus, no opinion was needed without evidence of disabling hearing loss.

Given the evidence of record, the Veteran currently is not shown to have a hearing loss disability, as defined by VA, for compensation purposes. See 38 C.F.R. § 3.385. Despite his lay assertion of having right ear hearing loss, the competent evidence does not support such a finding. The Veteran in this regard has not identified or submitted competent evidence to show current hearing loss disability. 

The Veteran is competent to testify as to his symptoms, including his hearing loss manifestations. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this instance, he does not have the requisite medical training or expertise to offer a diagnosis. See Jandreau, 492 F.3d 1372; Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). 

As hearing loss is defined by regulation and requires testing to determine if a hearing loss disability exists, the Veteran is clearly not competent to render a medical diagnosis or a nexus opinion in this case. 

Congress specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1131. In the absence of this evidence, there can be no grant of service connection under the law. See Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992). 

The preponderance of the evidence is against the claim, and service connection for right ear hearing loss is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

      (CONTINUED ON NEXT PAGE)
      
      
      
      
      
ORDER

Service connection for a right knee disability is denied.

Service connection for a right ear hearing loss disability is denied.



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs