Citation Nr: 1301271	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  08-17 923	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for residuals of a right shoulder injury.

2.  Entitlement to service connection for a right knee disorder.

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

4.  Entitlement to service connection for low back disorder.

5.  Entitlement to service connection for hearing loss. 

6.  Entitlement to service connection for tinnitus.

7.  Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD).




REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. M. Kreitlow


INTRODUCTION

The Veteran had active service from December 1965 to October 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2007 and February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Veteran appeared and testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ) in October 2011.  A copy of the transcript of this hearing has been associated with the claims file.  A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010).

The Board notes that the Veteran's claims were previously remanded in March 2012.  At this time, the Board finds substantial compliance with the prior remand directives-with respect to the issues adjudicated herein.  Therefore, the Board will proceed forward with adjudication of these claims.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  
In its March 2012 remand, the Board noted that, at the October 2011 hearing, the Veteran submitted a substantive appeal as to the issue of entitlement to service connection for a left knee disorder.  Consequently, it included that issue for adjudication.  Furthermore, the Veteran also indicated that he did not desire to continue with an appeal of the claim for service connection for diabetes mellitus, type II.  As such, the Board found that issue was not on appeal.

The claim for service connection for a psychiatric disorder, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  None of the claimed conditions are enumerated diseases that have been recognized by VA to be related to exposure to herbicides while serving in the Republic of Vietnam.

2.  The Veteran has a scar on his right shoulder that is related to a laceration wound received thereto in service.

3.  The Veteran has degenerative joint disease of the right shoulder that is not related to any injury, disease or event incurred in service, nor did it manifest to a compensable degree within one year of his discharge from service-or, indeed, until many years later.  

4.  The evidence being in equipoise, the Veteran has degenerative joint disease of his right knee that is related to his active service.

5.  The Veteran has degenerative joint disease of the left knee that is not related to any injury, disease or event incurred in service, nor did it manifest to a compensable degree within one year of his discharge from service-or, indeed, until many years later.  

6.  The evidence being in equipoise, the Veteran has degenerative joint disease of his lumbosacral spine at the L5-S1 level that is related to his active service.

7.  At no time during the current appeal has the Veteran been shown to have a current hearing disability as defined for VA compensation purposes.

8.  The Veteran's tinnitus, which was first shown many years after active duty, is not related to in-service noise exposure.


CONCLUSIONS OF LAW

1.  Presumptive service connection for the claimed conditions, as applicable, is not warranted.  38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309 (2012).

2.  Scar residual of a laceration wound to the right shoulder was incurred in service.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).

3.  Degenerative joint disease of the right shoulder was not incurred in or aggravated by service, nor can it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

4.  Resolving reasonable doubt in the Veteran's favor, degenerative joint disease of the right knee was incurred in service.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).

5.  Degenerative joint disease of the left knee was not incurred in or aggravated by service, nor can it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

6.  Resolving reasonable doubt in the Veteran's favor, degenerative joint disease of the lumbosacral spine at the L5-S1 level, was incurred in service.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).

7.  Bilateral hearing loss was not incurred in or aggravated by service, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

8.  Tinnitus was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance Requirements

38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In the present case, notice was provided to the Veteran in March 2006 and December 2008.  The Board finds that the notices provided fully comply with VA's duty to notify.  Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims.  He was told it was his responsibility to support the claims with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist.  Indeed, the Veteran submitted evidence in connection with his claims, which indicates he knew of the need to provide VA with information and evidence to support his claims.  Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless.  [Any timing defect of the December 2008 letter was cured by the agency of original jurisdiction's (AOJ's) subsequent readjudication of the appeal and issuance of a supplemental statement of the case, most recently in October 2012.]  

With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA.  38 U.S.C.A. § 5103A(b)(1).  All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained.  The Board notes that the Veteran identified that he sought treatment after his discharge from service at the VA Medical Center in Wilmington, Delaware, and Providence, Rhode Island.  In November 2009, the Providence VA Medical Center responded to a request for records indicating that a search did not find any evidence of treatment for this Veteran during the identified timeframe.  In addition, in April 2010, the Wilmington VA Medical Center advised the RO that the records it inquired about could not be located.  Consequently, the Board finds that reasonable efforts have been undertaken to obtain the identified VA treatment records, but those efforts were unsuccessful.  Further efforts would be futile.  VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's 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.  The Veteran was afforded VA examination on his claims in August 2006, September 2006 and April 2012.  In its March 2012 remand, the Board found that the August 2006 VA General Medical examination was not adequate as the examiner failed to provide medical nexus opinions.  In addition, the Board found that a new VA audiological examination was warranted based upon the Veteran's testimony given at the October 2011 hearing.  Thus, the Board remanded the claims for new VA examinations and medical nexus opinions, which were obtained in April 2012.  The reports of the April 2012 VA examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board concludes, therefore, that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  

Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case.  Additional efforts to assist or notify him would serve no useful purpose.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. 

II.  Presumptive Service Connection Based on Exposure to Herbicides

The Board notes that the RO initially adjudicated the Veteran's claims on both a direct basis and a presumptive basis as due to exposure to herbicides.  Consequently, the Board must address whether presumptive service connection is warranted for any of the claimed conditions as due to exposure to herbicides.

Initially the Board notes that the Veteran's service records demonstrate that he served in the Republic of Vietnam from July 1967 to July 1968.  Consequently, the Board finds that the Veteran is entitled to the presumption of exposure to herbicides during such service.  See 38 C.F.R. § 3.307(a)(6)(iii).  Thus, the question in the present case is whether any of the claimed conditions are entitled to presumptive service connection.

In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease.  38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e).  

Diseases associated with such exposure include: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) Note 1; 75 Fed. Reg. 53,202 (August 31, 2010).  For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.  75 Fed. Reg. 53,202 (August 31, 2010) (to be codified as Note 3 in 38 C.F.R. § 3.309(e)).  The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994).  See also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996).  A list of specific conditions not having a positive association was recently published by the Secretary.  See Notice, 75 Fed. Reg. 81,332 (December 27, 2010).

For presumptive service connection to be warranted, the herbicide-related disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii). The regulatory definition of "service in the Republic of Vietnam" [38 C.F.R. § 3.307(a)(6)(iii)] requires that an individual actually have been present within the boundaries of the Republic of Vietnam to be considered to have served there, through inclusion of the requirement for duty or visitation in the Republic of Vietnam. VAOPGCPREC 27-97.  

In the current appeal, the Veteran seeks service connection for residuals of a right shoulder injury (which the evidence shows includes a scar and degenerative joint disease), right and left knee disorders (which the evidence shows is diagnosed as degenerative joint disease), a low back disorder (which the evidence shows is diagnosed as degenerative joint disease of the lumbar spine at the L5-S1 level), hearing loss, and tinnitus.  Consequently, the Board finds that none of the claimed conditions are enumerated diseases that have been found by VA to be associated with exposure to herbicides.  The Board finds, therefore, that presumptive service connection based on exposure to herbicides is not warranted for any of the Veteran's claimed conditions.

III.  Direct Service Connection and 
Presumptive Service Connection for a Chronic Disease 

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  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).  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).

Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a).  

Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  Medical evidence of a current disability and nexus is not always required to establish service connection. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.   38 C.F.R. § 3.159(a)(1).  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)(2).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

Residuals of a Right Shoulder Injury

The Veteran claims that his current right shoulder disorder is related to a laceration wound he received in service when he was struck by the blade of an open fan.  He testified at the hearing that his shoulder was ripped open and he had to have stitches and a sling for six weeks.   He still has a scar and has arthritis.

Service treatment records show that the Veteran was seen for shoulder complaints three times during service.  The first time was in April 1966 when he complained of "pain in [his] shoulder."  The remainder of the note is difficult to read; however, the Board notes the "L," which is usually interpreted as "left."  Hence, the Board finds that this note is not related to the Veteran's right shoulder but rather his left.  

The next treatment note is from June 1966.  This note indicates a problem with the long and short heads of the Veteran's biceps.  His arm was put in a sling, and he was given Darvon for pain.  Although not specifically indicating which shoulder was involved, there is a diagram of the slinging of the arm that clearly indicates it was the right arm that was put in the sling.  Consequently, the Board concludes that this treatment note indicates some type of problem with the Veteran's upper arm that required slinging of that extremity.  Finally, an August 1966 treatment note indicates that the Veteran sustained a two inch laceration to the lateral aspect of his right upper arm that required eight sutures.  The Board notes that this treatment note appears to coincide with the Veteran's report of injury in service, which is that he sustained a laceration to his right shoulder when he was at Beeville when he bumped into an open fan.  

The Veteran underwent a VA examination in August 2006 as a result of which the examiner diagnosed him to have degenerative joint disease in the right shoulder based upon X-rays taken at that time.  The examiner, however, provided no medical nexus opinion as to whether the diagnosed current degenerative joint disease of the Veteran's right shoulder is related to any of the medical care shown in the service treatment records. 

Furthermore, the Board notes that the Veteran testified that he still has a scar on his shoulder from the laceration he sustained in service, which was also not addressed by the August 2006 VA examiner.

Thus, the Board remanded the Veteran's claim in March 2012 for a new VA examination.  At the April 2012 VA examination, the Veteran reported that he has pain when he raises his right arm up in the air.  At rest, he has no problems.   Aggravating factor is movement and relieving factor is rest.  He has received no treatment and has had no surgery or injections.  He reported that, in the service in 1967, he was working in the galley and they had a big fan without a face guard.  He bumped into it and ripped open his right shoulder and he has a scar.  He reported that his right hand is dominant.  He denied having any flare-ups that impact the function of the right shoulder and/or arm.

On physical examination, range of motion of the right shoulder was full and without objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing with three repetitions without any decrease in his range of motion or additional functional loss and/or impairment.  There was no localized tenderness or pain on palpation of the right shoulder, soft tissue or biceps tendon.  There was also no guarding of the right shoulder.  Strength was 5/5.  The following tests were negative:  Hawkins' Impingement Test, Empty-can test, External rotation/Infraspinatus strength test, Lift-off subscapularis test and Crank apprehension and relocation test.  There was no history or evidence of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint.  Furthermore, there was no acromioclavicular joint condition or any other impairment of the clavicle or scapula.  The examiner did find that the Veteran had a scar on the right shoulder over the lateral aspect as a vertical one measuring four inches long that was well-healed, mobile, nontender and with no keloid formation.  X-rays were noted to demonstrate moderate degenerative joint disease of the acromioclavicular joint and the glenohumeral joint.

The diagnosis was laceration scar and degenerative joint disease of right shoulder.  The examiner commented that the examination of the shoulder was normal and that the scar was benign.  He stated that the nature of the injury, a traumatic laceration of the skin, is not likely to cause joint problems.  The laceration healed uneventfully.  He, therefore, opined that it is unlikely that the injuries sustained in service are causing the right shoulder problems.  He commented that the claims file and the service file were reviewed.

Based upon the foregoing, the Board finds that service connection is warranted for the scar on the right shoulder because the evidence shows the Veteran sustained a laceration wound to the right shoulder in service in August 1966 and that he continues to have a residual scar from it.  Consequently, the Board grants service connection for scar residual from the laceration wound to the right shoulder.

As for the degenerative joint disease of the right shoulder, however, the Board finds that the preponderance of the evidence is against finding that this condition is related to the Veteran's active service.  Although there was treatment in service for a right upper extremity problem in June 1966, this was noted to be a problem with the long and short heads of the Veteran's bicep muscle rather than a problem with his shoulder joint.  The service treatment records fail to show any additional treatment over the Veteran's remaining service, and no abnormality was found on examination at separation in September 1969, over three years later.  Consequently, the Board finds that the service treatment records fail to demonstrate that the Veteran had a chronic right shoulder disorder, to include degenerative joint disease, during service.

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).  Service connection may also be warranted if the competent and credible evidence of record establishes that the disability was incurred in service. 

In the present case, there is no evidence showing a continuity of symptomatology since service connection.  At the hearing, the Veteran testified that he began to have pain in the shoulder after service but failed to provide any detail as to how long after service he began having pain or when he first sought treatment for it.  He further testified that he was seen for treatment of the right shoulder at the VA Medical Center and told the doctor about the laceration wound to the right shoulder.  He related that the doctor looked at it and said just the scar was still there but it was nothing to worry about.  VA treatment records since October 1999 fail to show treatment for degenerative joint disease of the right shoulder.  The Board notes that, although in 2011, the Veteran's past medical history began to include "pain in joint involving shoulder region," this would appear to be related to the left shoulder given that X-rays were taken in August 2009 of the left shoulder because of complaints of pain for three weeks.  Consequently, the earliest post-service medical evidence of a right shoulder disorder (other than the laceration scar) is the August 2006 VA examination that diagnosed degenerative joint disease.  Thus, the evidence fails to demonstrate a continuity of symptomatology.

Furthermore, the competent, credible and persuasive evidence of record fails to demonstrate that the Veteran's degenerative joint disease of the right shoulder is related to any injury incurred in service.  The April 2012 VA examiner specifically opined that the Veteran's current degenerative joint disease of the right shoulder was less likely than not the result of the laceration wound incurred in service as the nature of such injury, a traumatic laceration of the skin, is not likely to cause joint problems.  Furthermore, the laceration healed uneventfully.
Consequently, the only evidence indicating a relationship exists between the Veteran's current degenerative joint disease of the right shoulder and the laceration wound incurred during his military service is the Veteran's own lay opinion.  As a lay person, however, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions because such matters require medical expertise.  38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67 (1997).  Because the Veteran is not professionally qualified to offer a diagnosis or suggest a possible medical etiology, his statements are afforded little weight as to whether a nexus exists between his degenerative joint disease of the right shoulder and his military service.

Finally, the Board notes that the medical evidence of record fails to show that the Veteran was diagnosed to have degenerative joint disease of the right shoulder that manifested to a compensable degree within one year after his discharge from service in 1969.  Consequently, service connection on a presumptive basis for a chronic disease is not warranted.

In conclusion, the Board finds that service connection is warranted for a scar residual from the laceration wound to the right shoulder incurred in service.  The preponderance of the evidence is, however, against finding that service connection is warranted for degenerative joint disease of the right shoulder.  The preponderance of the evidence being against the claim, the benefit of the doubt doctrine is not for application.  Consequently, service connection for degenerative joint disease of the right shoulder must be denied.

Right and Left Knee Disorders

The Veteran claims that he injured both of his knees in service when he fell off a second floor balcony.  He testified at the hearing that his knees continued to bother him throughout the rest of his military service and since.  He related that he probably sought treatment for his knee conditions for the first time after service in 1971 when he started going to the VA Medical Center in Providence, Rhode Island (however, as previously mentioned, records from this facilities are not attainable).

Service treatment records show that the Veteran was seen in sick call in June 1967 with complaints of right knee pain due to trauma five weeks prior with pain and swelling persisting.  Physical examination showed that there was some increased joint fluid and tenderness.  X-rays, however, were within normal limits.  No assessment of any particular problem was rendered.  No further treatment for the right knee is seen in the service treatment records.  As for the left knee, the service treatment records do not show any complaints or treatment.  At his hearing, the Veteran testified that he reported the problems with his knees at his separation examination; however, there is no Report of Medical History among his service treatment records related to his separation examination to confirm this, and the Report of Medical Examination fails to indicate any finding of an abnormality of the Veteran's knees. 

As for the Veteran's testimony at the hearing that he injured both of his knees when he fell off a second floor balcony, the service treatment records document such an incident occurred on June 23, 1968.  The relevant treatment records, however, do not show any complaints of, or treatment for, the knees at that time.  Rather they indicate the Veteran fell on his left side and had pain in his left hip.  The initial treatment note shows he was able to walk on the left leg without serious pain so there was apparently no fracture.  He was told to return in the morning for further evaluation.  The next day he was evaluated in Orthopedics.  At this time he related that he landed on his left buttock.  There was tenderness over the lateral aspect of the left buttock and over the ileum crest.  X-rays showed there were no fracture and no dislocation.  The impression was a contusion.

Post-service medical evidence consists of the August 2006 VA examination and VA treatment records commencing in November 1993.  The August 2006 VA examiner diagnosed the Veteran to have degenerative joint disease in the knees based upon X-rays taken at that time.  

VA treatment records from 2008 and 2009 show the first complaints of bilateral knee pain.  The report of the Veteran's annual physical conducted in February 2008 showed complaints of chronic bilateral knee pain for several months without swelling or instability.  On physical examination, there was crepitus and decreased range of motion of the right knee without swelling or tenderness.  The assessment was arthralgia likely due to degenerative joint disease.  The report of the Veteran's annual physical conducted in January 2009 showed complaints of chronic pain in both knees for several months without swelling or instability.  It was noted that X-rays showed moderate degenerative changes affecting the patellofemoral joint.  Physical examination of the knees showed crepitus and decreased range of motion in the left knee without swelling or tenderness.  The assessment was left knee pain.  The Veteran was referred to Physical Medicine and Rehabilitation for further evaluation.  

In April 2010, the Veteran was seen in Primary Care for follow up of his medical conditions.  He complained that "both my knees have been hurting all my life and they have been getting bad now, for at least 30 years now....  I remember they told me long ago that it was arthritis and they couldn't do nothing about it."  Physical examination, however, was normal, including range of motion of both knees.  The physician's assessment was that the Veteran's bilateral knee pain was likely related to degenerative joint disease.  X-rays taken in April 2010 showed mild to moderate narrowing of the medial and patellofemoral compartments; spurring of tibial spines; a tiny marginal osteophyte at the lateral tibial plateau; a small enthesophyte at the insertion of the quadriceps and patellar tendons on the patella; and an ovoid 1.4 x 0.4 cm well corticated ossific density adjacent to the superior margin of the patella which may represent sequela of prior old traumatic injury.  The impression was mild to moderate degenerative changes.  There were no further complaints of bilateral knee pain seen in the treatment records through October 2012.

In March 2012, the Board remanded the Veteran's claims for bilateral knee disorders to obtain a new VA examination with a medical nexus opinion, which the Veteran underwent in April 2012.  At this examination, the Veteran reported that his right knee aches constantly.  His left knee is not as bad as his right.  The pain is located on top and in front.  Aggravating factor is weather, especially wet weather, and relieving factors are massage and hot/cold compresses.  He was not getting treatment at that time, and had not had surgery or injections.  He reported that when he fell off the balcony was when the knees first started bothering him.  He went to a doctor in 2005 and was told that nothing could be done.  He denied having any flare-ups that impact the functioning of his knees.

On physical examination, range of motion of the right knee was 0 to 125 degrees without objective evidence of painful motion.  Range of motion of the left knee was 0 to 130 degrees without objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of range of motion or loss/impairment of function.  There was no tenderness or pain to palpation along the joint line or in the soft tissues of either knee.  Muscle strength was 5/5 bilaterally.  There was no instability of either knee.  Also, there was no evidence of history of dislocation or subluxation, or of any meniscal conditions.  It was noted that the Veteran did not use any assistive devices.  X-rays of the knees were noted to show mild degenerative joint disease.

The examiner noted that the claims file and service files had been reviewed.  The examiner stated that the degenerative changes seen in the Veteran's knees are within age related changes and, therefore, opined that it is unlikely that the service injury (the fall from the second deck) would have caused the Veteran's current knee conditions.

In October 2012, the Veteran submitted a statement dated in October 2011 from a private physician in support of his claim for service connection for a right knee disorder.  In this statement, the private physician noted the Veteran's treatment in June 1967 while in service where he complained of right knee trauma five weeks before his visit and was noted to have swelling and fluid on the joint.  In his treatment note, this private physician also noted the Veteran's report of having an injury to the knee from a fall on June 24, 1968 from a two story building.  The private physician stated that, based on these records and the history obtained, as well as his examination, it is his opinion that it is more likely than not that the Veteran's right knee condition resulted from injuries sustained while he was on active duty in the military.
      Right Knee

The service treatment records only show treatment during service once in June 1967 for a right knee injury.  Furthermore, no right knee abnormality was noted on the Veteran's separation examination in September 1969.  The Board acknowledges the Veteran's report of having right knee pain in service after a fall from a second floor balcony in June 1968, but there is no diagnosis of a chronic disability resulting in such knee pain.  Consequently, the Board finds that the evidence fails to demonstrate that the Veteran had a chronic right knee disorder, to include degenerative joint disease, during service.

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).  Service connection may also be warranted if the competent and credible evidence of record establishes that the disability was incurred in service. 

The Veteran has stated that he had the onset of right knee pain in service and that it has continued since service.  The separation examination, however, was silent for any evidence a right knee disorder.  Moreover, the post-service medical evidence is silent for complaints of right knee pain until August 2005 at the Veteran's Agent Orange Registry examination, the assessment of which was osteoarthritis.  The Board also notes that a diagnosis of degenerative joint disease confirmed by X-ray is not seen in the record until the August 2006 VA examination.  Thus, the medical evidence does not support his report of continuous right knee pain since service.  Furthermore, although the Veteran is competent to report that he has had right knee pain since service, he is not competent to say that it is due to the currently diagnosed degenerative joint disease.  The presence of degenerative joint disease is a determination "medical in nature" and not capable of lay observation.  A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Therefore, the Board finds that the Veteran's lay opinion that the right knee pain he has had since service is caused by the recently diagnosed degenerative joint disease is not probative.  

Nevertheless, the Board finds that the medical evidence is in equipoise as the record contains two opposing nexus opinions, neither of which the Board can say is more probative than the other.  It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  In the present case, the VA examiner's opinion is that the Veteran's current degenerative joint disease is age-related while the private physician's opinion is that it is related to injuries incurred in service.  The VA examiner did not mention the June 1967 service treatment note showing treatment for right knee pain reportedly due to an injury to the right knee.  Rather it appears he only considered the Veteran's report that he injured the right knee in June 1968 when he fell from a second story balcony despite the fact that the service treatment records do not support that he sustained an injury to the right knee from that fall.  Whereas the private physician did consider the June 1967 service treatment note as well as the Veteran's report of an injury to the right knee from the fall in June 1968 in rendering his opinion.  Neither physician, however, appears to have considered the fact that the service treatment records relating to treatment after the June 1968 fall fail to show any injury to the right knee or any treatment thereafter for many years.  Consequently, the Board finds that the evidence is in equipoise and raises a reasonable doubt that the Veteran's current right knee degenerative joint disease is related to injury incurred during his military service.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for degenerative joint disease of the right knee is warranted, and the Veteran's claim is granted.

      Left Knee

The service treatment records do not show complaints of or treatment for any problems relating to the left knee during service.  Furthermore, no left knee abnormality was noted on the Veteran's separation examination in September 1969.  The Board acknowledges the Veteran's report of having left knee pain in service after a fall from a second floor balcony in June 1968, but there is no diagnosis of a chronic disability resulting in such knee pain.  Consequently, the Board finds that the evidence fails to demonstrate that the Veteran had a chronic left knee disorder, to include degenerative joint disease, during service.

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).  Service connection may also be warranted if the competent and credible evidence of record establishes that the disability was incurred in service. 

The Veteran has stated that he had the onset of left knee pain in service and that it has continued since service.  The separation examination, however, was silent for any evidence a left knee disorder.  Moreover, the post-service medical evidence is silent for complaints of left knee pain until August 2005 at the Veteran's Agent Orange Registry examination, the assessment of which was osteoarthritis.  The Board also notes that a diagnosis of degenerative joint disease confirmed by X-ray is not seen in the record until the August 2006 VA examination.  Thus, the evidence does not support his report of continuous left knee pain since service.  Furthermore, although the Veteran is competent to report that he has had left knee pain since service, he is not competent to say that it is due to the currently diagnosed degenerative joint disease.  The presence of degenerative joint disease is a determination "medical in nature" and not capable of lay observation.  A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Therefore, the Board finds that the Veteran's lay opinion that the left knee pain he has had since service is caused by the recently diagnosed degenerative joint disease is not probative.  

Furthermore, the only competent medical opinion of record as to the etiology of the Veteran's left knee degenerative joint disease is the April 2012 VA examiner's opinion that it is within age related changes and thus it is unlikely that the in-service injury caused his current knee condition.  No other diagnosis of a disorder of the left knee has been identified at this time.  Consequently, the Board finds the VA examiner's medical opinion to be highly probative to the issue of whether the Veteran's current degenerative joint disease of the left knee is related to his military service.

Finally, the Board notes that the medical evidence of record fails to show that the Veteran was diagnosed to have degenerative joint disease of the left knee that manifested to a compensable degree within one year after his discharge from service in 1969.  Consequently, service connection on a presumptive basis for a chronic disease is not warranted.

Based on the competent, credible, and probative evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection is warranted for degenerative joint disease of the left knee.  The preponderance of the evidence being against the claim, the benefit of the doubt doctrine is not for application.  Consequently, the Veteran's claim must be denied.

Low Back Disorder

The Veteran claims that he injured his low back in service when he fell off a second floor balcony.  He testified at the hearing that his low back continued to bother him throughout the rest of his military service and since.  He related that he probably sought treatment for his low back condition for the first time a couple of years after service most likely at the VA Medical Center in Providence, Rhode Island.
Service treatment records contain notes showing complaints of low back pain in October 1967 (with a reported history of two years), October 1968 (with a reported history of three years), and December 1968.  The December 1968 treatment note indicates a diagnosis of muscle sprain.  The Board notes that the Veteran testified at the October 2011 hearing that he had injured his low back when he fell off a second floor balcony and that the service treatment records do show such an incident occurred in June 1968.  The relevant treatment notes indicate that the Veteran fell on his left side and had pain in his left hip but that he was walking on his left leg without serious pain.  He was seen for an orthopedic consultation the next day at which time it was noted that he landed on his left buttock.  Physical examination showed tenderness over the lateral aspect of the left buttock over the iliac crest.  X-rays showed no fracture or dislocation.  The impression was a contusion.  There was no finding of any injury to the spine.

Post-service medical evidence consists of private treatment records, VA treatment records and the reports of VA examination conducted in August 2006 and April 2012.  The earliest private treatment record is from November 20, 2000, which shows that the Veteran was diagnosed to have a lumbosacral strain after having carried loads up and down ladders (a work-related injury).  A November 28, 2000 treatment note, however, indicates that radiographic imaging showed a questionable area that might have been a fracture of the left iliac crest as well as degenerative changes.  On January 3, 2001, the Veteran saw an orthopedic surgeon.  This physician noted that he had initially treated the Veteran for lumbar strain in 1996 but that the Veteran had recovered and was doing full duty prior to the current injury.  He also indicated that he last saw the Veteran for his back condition in April 1998.  This physician noted that X-rays of the lumbar spine showed minor degenerative changes of the facet joints, no significant disk space narrowing, and minor osteophyte formations.  The assessment was lumbar strain and minor degenerative lumbar changes.  A magnetic resonance imaging (MRI) study was obtained in July 2001, which demonstrated hypertrophy of the right L4-L5 apophyseal joints and at the right L5-S1 apophyseal joint consistent with degenerative arthritis and a 4.5 cm maximal diameter lipoma posterior to the first and second sacral vertebrae, but no focal disc herniation or spinal stenosis.  A follow up treatment note with the orthopedic surgeon indicates that the previous diagnoses were continued.

VA treatment records show a reported history of 15 years of low back pain with multiple reinjuries in 2001, 2002 and 2004.  The Veteran underwent Orthopedic and Physical Medicine and Rehabilitation evaluations in 2003 with an assessment of myofascial pain of the low back with X-ray findings of some degenerative disease (minimal spondylosis with osteophyte formation), which the January 2003 Orthopedic note indicates was within normal limits for the Veteran's age.   

The August 2006 VA examiner rendered a diagnosis of degenerative arthritis of the lumbar spine based upon X-rays taken at that time; however, he failed to provide a medical nexus opinion.  In March 2012, the Board remanded the Veteran's claim for a new VA examination to determine whether the Veteran's current lumbar spine disorder is related to any injury or disease incurred in service, specifically the treatment for complaints of low back pain seen in service as well as the fall off the balcony in June 1968.  

The Veteran underwent the requested VA examination in April 2012.  At that time, the Veteran reported that his back swells a lot and stays stiff.  He goes to the chiropractor for treatment, which resolves his symptoms for several weeks.  If he does heavy work, however, his low back problem starts up again.  He stated that the pain is in the lower back and is localized there.  Aggravating factors are if he sits and stands too long.  Relieving factors are exercises that he was taught.  He reported that, in service, he fell off a second story balcony and landed on his left side injuring his knees and back.  He went to the infirmary and got time off from work (about two weeks).  He was given medication.  On leaving the service, he started working in construction and he would constantly reinjure his back.  He worked different jobs and would see doctors related to that company.  In 2005, he was told that he needed a spine fusion; however, he has had no surgery or injections into the back.  Regarding the injuries that occurred in 2001, 2002 and 2003, in each incident they would refer back to a pre-existing condition.  The Veteran denied having flare-ups that impact his functioning.

On physical examination, range of motion was limited to 70 degrees of forward flexion, 25 degrees of extension, 30 degrees of right and left lateral flexion, and 30 degrees of right and left rotation.  All ranges of motion were done without objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of motion or functional loss or impairment.  There was no localized tenderness or pain to palpation of the joints or soft tissue of the thoracolumbar spine.  There was also no guarding or muscle spasm of the thoracolumbar spine.  Muscle strength was 5/5 throughout the lower extremities.  Reflexes and sensation in the lower extremities were normal.  There was no evidence of radiculopathy, intervertebral disc syndrome, or ankylosis.  The Veteran did not use assistive devices.  X-rays of the lumbosacral spine showed minimal anterior wedging of the T11 vertebral body, nonspecific but most likely representing a mild chronic compression fracture, mild to moderate multilevel discogenic and facet joint degenerative disease most pronounced at L4-L5, and mild grade 1 retrolisthesis at L1-L2 and L2-L3, likely degenerative in etiology.  The examiner's diagnosis was degenerative joint disease of the L5-S1.

The examiner noted that the claims file was reviewed and that it showed that, on June 23, 1968, the Veteran fell off a second deck onto his left side and complained of pain in the left hip, left cheek and eye.  The diagnosis was contusion.  The examiner opined that this sort of contusion is unlikely to lead to chronic low back pain.  The examiner further noted treatment in service on December 19, 1968 for low back pain after lifting a trash can and on October 18, 1968 for low back pain.  The September 1969 separation examination was normal.  He further noted the Veteran had injuries to the back after service in November 2000 when he picked up a 90 pound piece of sheet rock and had back pain and in March 2002, when the Veteran fell backward at work over a 20 inch pipe down 30 inches to the ground.  Finally, the examiner commented that there is no evidence of significant treatment for the back for many years after the Veteran left service.  Based on the foregoing, the examiner opined that it is unlikely that the service injuries are associated with the Veteran's current back condition.

In October 2012, the Veteran submitted in support of his claim one page of a treatment note and a one-page statement from a private physician dated in October 2011.  The treatment note page indicates the Veteran reported that his back pain began 43 years before and that the symptoms are in his lower back that radiates to the upper back.  He reported a history of falling off a second story building in 1968 during military service in Vietnam.  He had seen a chiropractor for the prior 15 years.  He reported he had not had relief of his pain since the incident.  He further related that he had to quit his construction job due to the stress on his back.  In the statement from the private physician, he noted the Veteran's records show that when he was in the military he sustained a back injury and was treated with heat treatment, Darvon and Robaxin on October 13, 1967.  He had additional treatment on October 24, 1968.  On his visit in 1967, he stated he had low back pain for two years, and on his visit in 1968, he stated he had low back pain for three years.  The private physician noted that the Veteran was in the military since December 1965, so that his history would be consistent with his low back pain developing while he was in the military.  The private physician stated that he saw the Veteran on March 5, 2007 regarding low back pain, at which time he indicated an injury on November 20, 2006, but that he had been disabled due to back problems and due to a coma and he had been out of work for about three years prior to going back to work in the Spring of 2006.  The private physician indicated that he thought the Veteran would get back to his pre-injury status, which referred to the work related November 20, 2006 injury, so that the workers compensation injury caused symptoms but did not worsen his preexisting back condition.  Based on these records and the history and examination obtained that day, the private physician opined that it is more likely than not that the Veteran's low back pain resulted from injuries sustained while the Veteran was on active duty in the military.

The service treatment records show treatment during service in 1967 and 1968 with reported history of low back pain for two and three years, respectively.  A diagnosis of muscle sprain was rendered in December 1968.  However, no lumbar spine abnormality was noted on the Veteran's separation examination in September 1969.  The Board acknowledges the Veteran's report of having injured his low back in service after a fall from a second floor balcony in June 1968 and having pain thereafter, but the records fail to show any injury to the low back was sustained.  Rather the service treatment records show that the diagnosis was of a contusion of the left hip or buttock.  Furthermore, although there was a diagnosis of muscle sprain in December 1968, there is no evidence of a diagnosis of a chronic disability resulting in low back pain during service.  Consequently, the Board finds that the evidence fails to demonstrate that the Veteran had a chronic low back disorder, to include degenerative joint disease, during service.

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).  Service connection may also be warranted if the competent and credible evidence of record establishes that the disability was incurred in service. 

The Veteran has stated that he had the onset of low back pain in service and that it has continued since service.  The separation examination, however, was silent for any evidence any spine abnormality.  Moreover, the post-service medical evidence is silent for complaints of or treatment for low back pain until 1996 at the earliest when he was treated for a lumbar strain; however, the treatment note indicates the private physician stated that the Veteran had recovered and was doing full time.  

The Board also notes that a diagnosis of degenerative joint disease confirmed by X-rays is not seen in the record until 2001.  Although the Veteran is competent to report that he has had low back pain since service, he is not competent to say that it is due to the currently diagnosed degenerative joint disease.  The presence of degenerative joint disease is a determination "medical in nature" and not capable of lay observation.  A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Therefore, the Board finds that the Veteran's lay opinion that the low back pain he has had since service is caused by the recently diagnosed degenerative joint disease is not probative.  

Nevertheless, the Board finds that the medical evidence is in equipoise as the record contains two opposing nexus opinions, neither of which the Board can say is more probative than the other.  It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  In the present case, the VA examiner's opinion is that the Veteran's current degenerative joint disease was not caused by the injuries in service while the private physician's opinion is that it is related to the injuries incurred in service.  They both reference the multiple in-service treatment records showing complaints of low back pain.  Furthermore, although the VA examiner notes the post-service work-related injuries seen in the treatment records between 2000 and 2003, he does not discuss whether any of these injuries could be an intercurrent cause of the Veteran's current degenerative joint disease of the lumbosacral spine versus whether they are recurrent injuries of a pre-existing low back disorder as the Veteran claims.  As for the private physician, he actually mentions treatment for an injury in 2006, records of which are not associated with the claims file.  He states, however, that he told the Veteran that he thought he would get back to his pre-injury status, meaning that the injury caused symptoms but did not worsen his pre-existing back condition, which he essentially opined had its onset in service.  Finally, although both physicians considered the reported injury to the low back resulting from the fall off a balcony in 1968, neither physician appears to have considered the fact that the service treatment records relating to treatment after the June 1968 fall fail to show any injury to the low back, that the next complaints of low back pain were four to six months later, and thereafter there were no complaints of or treatment for a low back disorder for many years.  Consequently, the Board finds that the evidence is in equipoise and raises a reasonable doubt that the Veteran's current degenerative joint disease of the lumbosacral spine, L5-S1, is related to injury incurred during his military service.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for degenerative joint disease of the lumbosacral spine at the L5-S1 level is warranted, and the Veteran's claim is granted.

Hearing Loss and Tinnitus

The Veteran claims service connection for bilateral hearing loss and tinnitus as a result of military noise exposure while serving in the Republic of Vietnam.  At the October 2011 hearing, the Veteran testified that he began having problems with hearing loss and tinnitus while in Vietnam in service from exposure to lots of rockets, missiles and mortar fire during his work as a security guard.  With regard to tinnitus, he testified that a rocket or missile exploded right behind him at one point and that he started having tinnitus after this.  He further testified that he has continued to have problems with hearing loss and tinnitus until now.  The evidence shows that the Veteran served in the Republic of Vietnam from July 1967 to July 1968.  

The Veteran underwent a VA audiological examination in September 2006.  At that time, audiometric testing demonstrated the following puretone thresholds:




HERTZ



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

Speech audiometry revealed speech recognition ability of 96 percent in both ears.

The audiometric test results at the September 2006 VA examination were found to fail to demonstrate that the Veteran had a hearing loss disability for VA compensation purposes.  The examiner, therefore, said that a diagnosis could not be rendered because there was no pathology for one.  

Likewise, as to the claim for tinnitus, the examiner noted that the Veteran stated he does not have tinnitus.  The examiner stated, therefore, that he could not render a diagnosis of tinnitus because there was no pathology for one, including on the basis that the Veteran had no hearing problems.

It is further noted that, at his Board hearing, the Veteran stated that he told his doctor at VA about the problem and that he was tested.  A VA Primary Care treatment note from February 2006 shows the Veteran reported having occasional decreased hearing in the left ear.  He denied pain or tinnitus.  The assessment was hearing loss, left ear, and he was referred for a consultation with Audiology.  However, there is no record that the Veteran actually underwent the Audiology consultation.  

In March 2012, the Board remanded the Veteran's claim for a contemporaneous VA examination to see if he currently has a hearing loss disability for VA compensation purposes as defined in 38 C.F.R. § 3.385 and also if he has tinnitus.  Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007).  If either was shown on examination, then medical nexus opinions were requested as to whether any current hearing loss and/or tinnitus are related to military noise exposure.

The Veteran underwent the requested VA audiological examination in April 2012.  At that time, audiometric testing demonstrated the following puretone thresholds:




HERTZ



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

The Board notes that the audiometric test results also showed puretone thresholds in the right ear at 6000 Hertz was 35 and at 8000 Hertz was 20.  Puretone thresholds in the left ear at 6000 Hertz were 20 and at 8000 Hertz were 15.  Speech audiometry revealed speech recognition ability of 98 percent in both ears.  The examiner's diagnosis was of sensorineural hearing loss in the right ear in the frequency range of 6000 Hertz or higher and normal hearing in the left ear.

In rendering a medical nexus opinion, the examiner opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service.  The rationale was that the Veteran's MOS (military occupational specialty) as a military policeman has a noise exposure rating of moderate and he served for only three years.  After service, however, he was a right-handed carpenter tradesman for 28 years.  Consequently, the examiner opined that there is a greater probability that the high frequency hearing the Veteran has in the right ear is due to his 28 year career in carpentry.

As for tinnitus, the Veteran reported at the examination that he previously had a high pitched ringing in both ears that occurred after noise exposure but he could not relate its origin to a specific circumstance or time frame.  He reported that he had not heard it for over a year.  The examiner opined that it is less likely than not that the Veteran's tinnitus is caused by or a result of military noise exposure.  The rationale given was that the Veteran was unable to relate the onset or circumstances of his previous history of tinnitus.  He reported it occurred after noise exposure but his history of noise exposure was 3 years in military and 28 years in carpentry.  Finally, the tinnitus per Veteran's report is no longer present and has not been heard for over a year.

      Hearing Loss

Based upon the available medical evidence, the Board finds that it fails to establish that the Veteran has a current hearing loss disability, whether unilateral or bilateral, as defined for VA benefit purposes that is subject to service connection.  

With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection:  "[I]mpaired 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.  

Neither the September 2006 nor the April 2012 VA audiological examinations demonstrate that the Veteran's hearing meets the above criteria for a hearing disability subject to service connection for VA compensation purposes.  In fact, compared with the testing previously conducted in September 2006, it is clear that the April 2012 testing showed the Veteran's hearing was better than before.  The Board acknowledges that the April 2012 VA examiner found that the audiological examination showed sensorineural hearing loss in the 6000 Hz or higher frequencies in the right ear; however, for VA purposes, those frequencies are not considered in determining whether the Veteran has a hearing impairment disability that is subject to service connection.  See 38 C.F.R. § 3.385.  

Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran currently has hearing loss that constitutes a disability for VA compensation purposes.  Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that, "[w]ith regard to the requirement that a claimant have a current disability before service connection may be awarded ... this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim."  Therefore, service connection for hearing loss is denied because the medical evidence fails to establish the Veteran has a current disability for which service connection may be granted.  

      Tinnitus

Service treatment records are silent for complaints of tinnitus.  They do show, however, that the Veteran was treated many times throughout service for ear aches and otitis media involving the right ear, but most frequently after his return from Vietnam.  Despite this, they record no complaints of tinnitus or injury to the ears.  Furthermore, the separation examination from September 1969 fails to note any abnormality with the Veteran's ears, to include tinnitus.  Consequently, the Board finds that the service treatment records fail to demonstrate the Veteran had chronic tinnitus in service.  

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).  Service connection may also be warranted if the competent and credible evidence of record establishes that the disability was incurred in service. 

The Board acknowledges that the Veteran testified at the Board hearing in October 2011 that the onset of his tinnitus was in service when a rocket or missile exploded behind him and that he has had problems with tinnitus every since.  The Board further acknowledges that the Veteran is competent to report the onset of ringing in his ears as well as how long he has had such ringing.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

The Board finds, however, that other evidence in the record is inconsistent with the Veteran's report of an onset of tinnitus in service and a continuity since service.  Despite having treatment throughout service for right ear aches and otitis media, the Veteran never complained of having tinnitus much less reporting an injury to his ears from any such rocket or missile explosion while in Vietnam.  Furthermore, no notation of tinnitus was made at the time of the Veteran's separation examination in September 1969.  Furthermore, post-service treatment records do not show complaints of or treatment for tinnitus.  In fact, the Veteran denied having tinnitus in February 2006 when he reported having left ear hearing loss during treatment with VA Primary Care.  In addition, the Veteran denied having tinnitus at the VA examination conducted in September 2006 despite the fact he had just claimed service connection for such condition in February of that year.  Moreover, at the April 2012 VA audiological examination, although the Veteran reported a history of tinnitus after exposure to loud noises, he failed to relate this to any specific circumstance or timeframe.

The U.S. Court of Appeals for the Federal Circuit (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.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  This would include weighing the contemporary medical evidence against lay statements.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).  

After considering all the evidence, the Board does not find the Veteran's testimony as to an onset in service and a continuity since service of tinnitus to be credible.  Despite his testimony at the Board hearing in October 2011, the contemporaneous evidence fails to demonstrate any report of tinnitus despite the Veteran having received treatment many times, especially after his service in Vietnam, for ear problems.  Moreover, when the Veteran had a duty to report having tinnitus, he denied it or failed to relate it to service.  Given these gross inconsistencies in the record, the Board finds that the Veteran's testimony at the Board hearing in October 2011 is not credible and, therefore, lacks probative value to establish that the onset of tinnitus was in service and that he has had chronic tinnitus since his discharge from service.

Rather, the Board finds the most probative and persuasive evidence to be the April 2012 VA examiner's medical opinion that it is less likely than not that the Veteran's tinnitus is related to military noise exposure.  This opinion is based on the Veteran's failure to relate a specific circumstance as the cause of his tinnitus or to relate a timeframe of when his tinnitus started and on the fact that the Veteran was only in service for 3 years in an MOS that would have exposed him only to moderate noise but had occupational noise exposure as a carpenter for 28 years.  

Consequently, the Board finds that the competent, credible, probative and persuasive evidence of record is against finding that the Veteran has tinnitus that is related to military noise exposure.  The preponderance of the evidence is, therefore, against the Veteran's claim, and the benefit of the doubt doctrine is not for application.  Hence, the Veteran's claim must be denied.


ORDER

Entitlement to service connection for scar residuals of a laceration wound to the right shoulder is granted.

Entitlement to service connection for degenerative joint disease of the right shoulder is denied.

Entitlement to service connection for degenerative joint disease of the right knee is granted.

Entitlement to service connection for degenerative joint disease of the left knee is denied.

Entitlement to service connection for degenerative joint disease of the lumbar spine at the L5-S1 level is granted.

Entitlement to service connection for hearing loss is denied. 

Entitlement to service connection for tinnitus is denied.


REMAND

The Board finds that a remand of the Veteran's claim for service connection for a psychiatric disorder, to include PTSD, is necessary for additional development.

In the March 2012 Remand, the Board noted that the Veteran had claimed service connection for PTSD.  The medical evidence, however, showed diagnoses of depressive disorder, not otherwise specified, and generalized anxiety disorder.  Consequently, the Board recharacterized the issue as one for service connection for any psychiatric disorder, not just PTSD, that may be related to service.  Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order) (it is the responsibility of the Board to consider alternate current conditions within the scope of the claim).  

The Board further noted that VA treatment records show the Veteran reported having some nightmares and flashbacks.  In May 2007, he underwent a Mental Health consultation but the final diagnosis was depressive disorder, not otherwise specified, rather than PTSD as claimed by the Veteran.  At that time, the Veteran reported symptoms of depressed mood due to his medical issues, crying spells, irritability, insomnia, and occasional nightmares of someone breaking into his home.  He also reported being quite anxious about needing surgery for glaucoma.  He further reported that he slept about five hours but that it was disturbed and he could not go back to sleep.  He denied hopelessness, anorexia, auditory or visual hallucinations, or suicidal or homicidal ideation.   The Veteran was placed on medication and, in June 2007, it was noted that his depression was stable.  In addition, the mental health records show the Veteran attended PTSD Group Therapy in June 2007 and January 2008.  The January 2008 PTSD Group Therapy note shows, however, that he had been absent from the group for several months due to travel.  There are no subsequent notes indicating the Veteran ever returned to the PTSD therapy group.

In addition, the Veteran underwent a VA examination in August 2006.  At the VA examination, the Veteran reported that he had participated in combat activity in Vietnam in 1967.  The Board notes that the Veteran's DD 214 demonstrates he was awarded a Combat Action Ribbon, which is indicative of having been in combat.  At the VA examination, the Veteran reported several stressors relating to combat.  However, he denied symptoms of re-experiencing any of the traumatic events, symptoms of avoidance of stimuli associated with the trauma, and symptoms of increased arousal as a result of the traumatic events.  As a result, the examiner found that the Veteran's present psychiatric disorder did not meet the diagnostic criteria of PTSD according to the DSM-IV.  Rather, the examiner diagnosed the Veteran to have a generalized anxiety disorder.  
Further, the Board noted that the examiner did not actually render a medical nexus opinion.  The Board acknowledges that the examiner stated that the "primary service-connected disorder is GAD."  However, the Board did not find this statement adequate to constitute a medical nexus opinion.  

Consequently, the Board remanded the Veteran's claim for a new VA examination to determine the exact nature of the Veteran's current psychiatric disorder and to obtain an adequate medical nexus opinion. 

The Veteran underwent the requested VA examination in April 2012.  After examining the Veteran, the examiner found that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD, but did meet a diagnosis of primary insomnia, alcohol dependence, in full sustained remission (per Veteran's report), and marijuana abuse , in full sustained remission.  

The examiner noted the Veteran's relevant medical history of undergoing psychiatric evaluation at VA in May 2007 and being diagnosed with depressive disorder, not otherwise specified, and being prescribed mirtazipine (a sleep aid).  He also noted that a follow up note in June 2007 indicates the Veteran described a near total remission in symptoms.  The Veteran reported he discontinued taking medication because he did not like the side effects.  The examiner further noted the Veteran's report of a significant history of alcohol and marijuana abuse but that he quit 16 years before.  Although the examiner acknowledged the Veteran served in Vietnam for one year and had been awarded the Combat Action Badge, he noted that the Veteran did not endorse noteworthy "fear, helplessness or horror" as related to this tour.  Instead, the Veteran stated "it wasn't like we were just out in the middle of nowhere and we didn't know who was who.  We were in DaNang, it was a nice little place.  Sometimes they fired rockets on us and that was a little stressful, but my service was pretty good."  Hence the examiner found that this stressor did not meet Criterion A for a diagnosis of PTSD nor did it demonstrate fear of hostile military or terrorist activity.  Furthermore, the examiner noted that the Veteran had no persistent re-experiencing of a traumatic event, no persistent avoidance of stimuli associated with trauma or numbing of general responsiveness, and no persistent symptoms of increased arousal.  Consequently, the examiner found that the Veteran did not meet the full criteria for a diagnosis of PTSD.

In fact, the main symptom the Veteran reported was chronic sleep impairment.  The examiner also noted that the Veteran endorsed "nightmares;" however, the examiner noted that further explanation of these experiences suggested that the Veteran has "nightmares" very infrequently (every six to seven months) and his dreams typically have a cathartic resolution (Veteran stated that he never suffers "more than a flesh wound" in his dreams).  The examiner stated that, although said dreams may be mildly distressing to the Veteran when they do occur, their content and frequency are not beyond the range of normal and is not consistent with traumatic re-experiencing.  

Based upon his examination, the examiner stated that the results of this examination revealed that the only "symptom" that the Veteran is currently experiencing is sleep disturbances, to include difficulty falling and staying asleep.  In the absence of other issues, his condition is best characterized as Primary Insomnia.  The examiner stated that this condition is rather common among adults (estimated at 30 percent to 40 percent per the DSM-IV), and is the result of any number of causes.  In the Veteran's case, there exists no clear link between his sleep difficulties and his military service.  The evidence of record indicates that, although the Veteran established care at VA in 1999, he did not complain of sleep issues until May 2007.  At that time, he complained of situational stressors, and his condition (per records) resolved within one month.  His entire mental health treatment history amounts to two psychiatric visits in 2007, and he reports relative clinical stability since that time.  Therefore, the examiner stated that there is no evidence to suggest that the Veteran's sleep problems have existed continuously since service and, therefore, it is less likely than not that there exists a nexus between the condition and service.

The Board finds that, in rendering his opinion, the examiner failed to discuss favorable evidence of record.  Specifically, he failed to discuss the PTSD Group Therapy notes from June 2007 and January 2008, as well as the finding in the previous August 2006 VA examination that the Veteran had a generalized anxiety disorder.  Consequently, it is not possible for the Board to know if he considered this evidence in rendering his opinion.

Furthermore, although the VA examiner determined that the May 2007 diagnosis of depressive disorder, not otherwise specified, was related to situation stressors and that his condition resolved within one month with clinical stability since that time (essentially finding that the Veteran's depressive disorder was temporary), the examiner failed to address the diagnosis of generalized anxiety disorder rendered by the August 2006 VA examiner.  In McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court of Appeals for Veterans Claims (Court) held that, "[w]ith regard to the requirement that a claimant have a current disability before service connection may be awarded ... this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim."  McClain, at 321.  Consequently, it is necessary to obtain an opinion from the VA examiner as to whether the Veteran's generalized anxiety disorder diagnosed by the August 2006 VA examiner is related to his military service.

Thus, on remand, the Veteran's claims file should be returned to the VA examiner who conducted the April 2012 VA PTSD examination to address these concerns.

Accordingly, the case is REMANDED for the following action:

1.  Return the Veteran's claims file to the VA examiner who conducted the April 2012 VA PTSD examination for a supplemental opinion. If that examiner is not available, the Veteran's claims file should be forwarded to another examiner who has the requisite experience to respond to the following inquiry. A new VA examination should not be scheduled unless deemed necessary by the examiner in order to respond to the following inquiry.

The examiner should review the claims file again, especially the PTSD Group Therapy treatment notes from June 2007 and January 2008, and the August 2006 VA psychiatric examination.  The examiner should discuss whether this evidence changes his prior opinion and, if so, why.  

Furthermore, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the generalized anxiety disorder diagnosed by the VA examiner who conducted the August 2006 VA psychiatric examination is related to any injury, event or circumstance incurred in service.  

The examiner should be advised that he should render an opinion even if the Veteran's generalized anxiety disorder is currently in remission as the diagnosis of such disorder was rendered after the Veteran filed his claim for service connection and, thus, the criteria for having a current disability have been met.  The examiner should provide a complete rationale for the opinion given, including discussion of evidence contrary to the opinion rendered.  If a requested opinion cannot be given without resorting to mere speculation, the examiner must so state and provide an explanation as to why such an opinion cannot be given.

2.  After ensuring that all necessary development has been completed (including that the VA medical opinion obtained is adequate), readjudicate the service connection claim remaining on appeal.  If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative.  An appropriate period of time should be allowed for response.  Thereafter, this claim should be returned to this Board for further appellate review, if in order.  
No action is required of the Veteran until he is notified by the AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims.  38 C.F.R. § 3.655 (2011).  He has the right to submit additional evidence and argument on the matters that the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs