Citation Nr: 1301949 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-10 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from September 1975 to September 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In his March 2007 substantive appeal, the Veteran requested a hearing before a member of the Board. However, a review of the record shows that in a June 2007 statement, the Veteran indicted that he wished to cancel his request for such a hearing. Therefore, the Veteran's hearing request is deemed to have been withdrawn. This case was previously before the Board in December 2010, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. In January 2012, the Veteran submitted new evidence in the form of a statement pertaining to his claims. He specifically waived his right to have the VA RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2012). The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND following the ORDER section of this decision. VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. Tinnitus is etiologically related to noise exposure during active service. 2. A bilateral knee disability is not etiologically related to the Veteran's active service and arthritis in either knee was not present within one year of his separation from such service. CONCLUSIONS OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A bilateral knee disability was not incurred in or aggravated by active service and the incurrence or aggravation of arthritis in either knee during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claims, the Veteran was mailed a letter in April 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The April 2006 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service personnel records (SPRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded appropriate VA examinations. The Board notes that attempts were also made to obtain the Veteran's service treatment records (STRs). However, the only STRs available were copies of the Veteran's August 1975 entrance examination. In a December 2011 memorandum, following an exhaustive search, the Veteran's remaining STRs were formally found to be unavailable for review. As VA made all necessary attempts to obtain the Veteran's STRs and informed the Veteran of their unavailability, the Board finds that there is no bar to proceeding with a final decision in this case. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 1995). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In some instances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Entitlement to Service Connection for Tinnitus The Veteran has asserted that he has tinnitus as a result of his noise exposure during active service. Specifically, the Veteran has reported hazardous noise exposure during active service consisting of large and small arms fire, loud aircraft noise, and other hazardous noise consistent with parachute jumping. A review of the Veteran's DD Form 214 shows that his military occupational specialty (MOS) while in active service was infantryman. A review of the Veteran's SPRs shows that in his capacity as an infantryman with a mechanized infantry company, he spent time as a gunner, a rifleman, and a radio telephone operator. The Veteran also attended jump school and was awarded his Jump Wings and a Parachutist Badge while in active service. Based on this, the Board concedes acoustic trauma during the Veteran's active service. As the Veteran's STRs are not of record, it is unknown whether the Veteran complained of experiencing tinnitus at any time during his active service or at the time of his separation. However, the Veteran has reported that he first experienced tinnitus during active service and that he has continued to experience such since his separation from active service. The Board notes that the Veteran is competent to report when his symptoms of tinnitus first began and that they have continued since his active service. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible in this regard. In November 2006, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported military noise exposure in the form of weapons fire and aircraft noise. He also reported high risk noise activity of riding a motorcycle for approximately two years. He denied any other non-noise related interactions attributed to infections, surgeries, head trauma, or ototoxic drugs. The Veteran reported that he experienced constant, bilateral tinnitus. He reported that his tinnitus had its onset during active service when in the infantry division, firing weapons. The examiner reported that the Veteran's tinnitus was time locked to his military experience and was consistent with his exposure to high risk noise during such service. However, the examiner also noted that as the Veteran's discharge medical examination was unavailable for review, a determination of a military basis for the Veteran's tinnitus was speculative. A review of the record shows that the Veteran receives periodic treatment for various disabilities at the VA Medical Center. A review of the VA Medical Center treatment notes of record shows that in April 2006, the Veteran was seen for complaints of chronic ringing in his ears that had increased in intensity. At that time, the Veteran was diagnosed with tinnitus and referred for an audiology consultation. In May 2006, the Veteran was seen for a VA Medical Center audiology consultation. At that time, the Veteran reported constant, bilateral tinnitus that had its onset during active service. In sum, the Veteran is more than competent to report that he first experienced tinnitus during active service and that he has continued to experience such since separation from active service. Additionally, these statements have been found credible by the Board. Furthermore, the Board has conceded the Veteran's exposure to hazardous noise during active service and the Veteran's assertions of experiencing tinnitus as a result of such noise exposure have been consistent throughout the pendency of this claim. Additionally, the Veteran has reported such during audiological evaluation for purely treatment purposes. Also, while the November 2006 VA examiner indicated that an opinion regarding the etiology of the Veteran's tinnitus could not be provided without speculation, the VA examiner did indicate that the Veteran's tinnitus was time locked with his active service and consistent with high risk noise exposure during active service. The Board also finds it significant that there is no negative nexus opinion of record. Therefore, the Board finds that the preponderance of the evidence is for the claim. Accordingly, entitlement to service connection for tinnitus is warranted. Entitlement to Service Connection for a Bilateral Knee Disability The Veteran has asserted that he has a bilateral knee disability as a result of his active service. Specifically, the Veteran has asserted that his service as a parachutist caused injury to his knees as during his training his knees went out on him several times, causing him to be transferred out of the airborne division. He has reported that the injuries to his knees would be documented in his STRs. As noted above, the Veteran's STRs have been found unavailable for review. As such, the Veteran's reported treatment in service cannot be verified. The Board notes that where service treatment records were lost or destroyed, the Veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing pain during service, reporting to sick call, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board finds that the Veteran is competent to report that he experienced knee problems while in active service. However, the Veteran's credibility must be determined by the Board. While the Veteran's STRs have been deemed unavailable, the Board notes that the Veteran's SPRs are available for review. A review of the SPRs is negative for any indication that the Veteran ever received treatment for a knee disability during active service. There is no indication that the Veteran lost time from duty or was placed on a profile of any kind as a result of knee problems while in active service. A review of the post-service medical evidence of record shows that in November 1981, the Veteran was involved in a motorcycle accident in which he injured his left knee. The Veteran subsequently underwent at least one knee surgery following the accident and then in August 1983, he underwent left knee reconstructive surgery. The Veteran has continued to experience left knee problems since that time and subsequently developed difficulties with his right knee. In June 2009, the Veteran underwent a left total knee arthroplasty (TKA) and in July 2009, the Veteran underwent a right TKA. There is no medical evidence of record documenting any treatment for knee problems between the time of his 1979 separation from active service and the left knee injury sustained in the 1981 motorcycle accident. In December 2006, the Veteran was afforded a VA examination. At that time, the Veteran reported that during active service he made over 100 parachute jumps and reported that during one of the jumps he injured his left knee. He reported that the injury required casting of his left leg, but that eventually he was returned to full duty. He reported that his right knee was also injured during service and that it "tricked out" repeatedly. The examiner noted that despite the reported knee problems during service, the Veteran was able to complete his enlistment. The examiner reported that a review of the claims file revealed the left knee injury sustained in the 1981 motorcycle accident and subsequent 1983 left knee reconstruction surgery. The examiner noted that the private medical records documenting the 1983 left knee reconstruction surgery reference only the left knee injury sustained in the 1981 motorcycle accident and did not indicate that any prior injury was sustained in active service. The examiner diagnosed bilateral traumatic arthritis of the knees. The examiner opined that it was less likely as not that the Veteran's bilateral knee disabilities were caused by or a result of events that occurred while the Veteran was in active service. In this regard, the examiner reported that there was no question that the Veteran had two bad knees, but that there were no medical records documenting any problems with the knees while the Veteran was in active service. Further, the VA examiner reported that the records documenting the Veteran's knee surgeries subsequent to his active service indicate that the Veteran's left knee problems, at least, could be dated back only as far as his November 1981 motorcycle accident. A review of the record shows that the Veteran also receives treatment for his bilateral knee disabilities at the VA Medical Center. Of record is a January 2011 letter from the Veteran's VA Medical Center treating orthopedist, Dr. E.W. In his letter, Dr. E.W. noted that he believed the Veteran's knee disabilities to be a result of the parachute jumps the Veteran made during active service. In this regard, Dr. E.W. noted that the Veteran had reported a history of knee injuries during active service as a result of parachute jumps. Dr. E.W. failed to mention the rather significant left knee injury the Veteran sustained in his November 1981 motorcycle accident. Also of record is a February 2011 statement from Mr. R.L., one of the Veteran's fellow service members. In his statement, Mr. R.L. reported that he had been stationed in Crailshiem, Germany at the same time as the Veteran and remembered the Veteran being in a full leg cast while they were there. The Board notes that the Veteran is generally competent to report events in service. However, 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 (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"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board finds that while the Veteran is competent to report that he experienced knee injuries during active service, the lay statements of record from the Veteran and Mr. R.L. regarding the alleged knee injuries during active service are inconsistent with the other evidence of record. In this regard, the Board notes that while the Veteran reported that he sustained a left knee injury during active service that was severe enough to warrant casting of his left leg, the Veteran's SPRs are negative for any indication that the Veteran was ever put on a limited profile as a result of such an injury. If the Veteran did in fact have an injury severe enough to warrant casting, the Board finds it unlikely that the Veteran would have been able to perform his normal duties for a period of at least several weeks and would likely have been given a limited profile for that time period. Additionally, the Veteran's reports of the severity of his knee injuries during active service have been inconsistent during the pendency of this claim. The Veteran's first statements regarding such injuries indicated that he had somewhat mild knee injuries while parachuting during active service. These statements eventually evolved into a statement indicating that he sustained a severe injury that warranted casting of his left leg during active service. The Veteran's statements that he continued to experience knee pain following his separation from active service are also inconsistent with the evidence of record. In this regard, the Board notes that the Veteran suffered a rather traumatic left knee injury in a motorcycle accident in November 1981, which eventually required left knee reconstruction surgery in 1983. There is no indication from the treatment notes of record documenting this surgical procedure that the Veteran ever indicated that he had also injured his knee during active service, prior to the 1981 motorcycle accident. In sum, the lay statements regarding the Veteran's knee injuries in service and the Veteran's reports of experiencing knee pain since his separation from active service are inconsistent with the medical evidence of record and the Veteran's own prior statements. Therefore, the Board finds that the Veteran's statements regarding the Veteran's knee injuries in service and the Veteran's reports of experiencing knee pain since that time are not credible. As discussed above, the Veteran's VA Medical Center orthopedist provided an opinion linking the Veteran's current knee disabilities to his active service. However, the Board notes that medical evaluation that is merely a recitation of the veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995); Reonal and LeShore, supra. Therefore, the Board finds that as the January 2011 opinion from the Veteran's VA Medical Center orthopedist linking the Veteran's current knee disabilities to his active service is not probative as it relied merely on the recitation of the Veteran's self-reported history which the Board has found to be not credible. Additionally, as a lay person, the Veteran is not competent to render a medical opinion linking his current knee disabilities to his active service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Further, the Board notes that there is no indication from the record that the Veteran was diagnosed with arthritis in either knee within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. In conclusion, the lay statements indicating that the Veteran experienced knee injuries in active service and the Veteran's reports of experiencing knee pain since his separation from active service are not credible and the Veteran is not competent to provide a medical opinion linking his current knee disabilities to his active service. The Veteran was in a motorcycle accident in November 1981 in which he sustained a rather traumatic left knee injury. The December 2006 VA examiner competently opined that the Veteran's knee disabilities were not related to his active service and as explained above, the January 2011 VA Medical Center orthopedist opinion linking the Veteran's current knee disabilities to his active service has no probative value as it was based on lay statements that have been found to be not credible. Therefore, the Board finds that the preponderance of the evidence is against the claim. Accordingly, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a bilateral knee disability is not warranted. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a bilateral knee disability is denied. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for bilateral hearing loss disability is decided. The Board notes that in May 2006, the Veteran was seen at the VA Medical Center for an audiology consultation. At that time, audiogram results showed the Veteran to have bilateral hearing loss disability for VA purposes as defined in 38 C.F.R. § 3.385 (2012). However, in November 2006, the Veteran was afforded a VA audiology evaluation. At that time, the audiogram results failed to show that the Veteran had bilateral hearing loss disability for VA purposes as defined in 38 C.F.R. § 3.385. The examiner did not provide an opinion regarding the etiology of the Veteran's reported bilateral hearing loss disability. Nor did the examiner address the inconsistency between the two VA audiograms that had been performed less than one year apart. As the audiograms were conducted less than one year apart yet yielded inconsistent results, the Board finds that the Veteran should be afforded a new VA audiology evaluation to accurately determine the nature and etiology of any currently present bilateral hearing loss disability. Additionally, current treatment records should be obtained before a decision is rendered with regard to this issue. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran should be obtained and associated with the claims files. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Then, the Veteran should be afforded a VA audiology evaluation by an examiner with sufficient expertise to determine the nature, extent, and etiology of any currently present bilateral hearing loss disability. The Veteran's claims file, to include a copy of this Remand, and any pertinent evidence in Virtual VA that is not contained in the claims files should be made available to and reviewed by the examiner. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated studies should be performed, and the reports of any such studies should be incorporated into the evaluation report to be associated with the claims file. Based on the examination results and a review of the record, the examiner should provide an opinion with regard to any currently present bilateral hearing loss disability as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that the disability is etiologically related to the Veteran's active service, to specifically include acoustic trauma sustained therein. The examiner should presume that the Veteran is a reliable historian with regard to his reports of noise exposure during active service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state the reasons, with specificity, why this question is outside the scope of a medical professional conversant in VA practices. The opinion should be provided even if the current evaluation does not establish the presence of hearing loss disability for VA compensation purposes. 3. The RO or the AMC should confirm that all examination reports and medical opinions provided comport with this remand and undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the Veteran's remaining claim on appeal based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs