Citation Nr: 1310114 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-04 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for bilateral shin splints. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for an acquired psychiatric disability, to include on a secondary basis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to April 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for each disability at issue. FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a bilateral knee disability that is etiologically related to military service. 2. Bilateral shin splints have not been documented following service. 3. Bilateral hearing loss has not been demonstrated following service. 4. Tinnitus has not been shown following service. 5. An acquired psychiatric disability has not been identified following service. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002). 2. Bilateral shin splints were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002). 3. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002). 4. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002). 5. An acquired psychiatric disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in August, October and November 2008 letters. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records and VA medical records. The Board acknowledges the Veteran has not been afforded a VA medical examination to obtain an opinion regarding the etiology of the disabilities at issue. Based on the evidence in this case, the Board finds that an examination is not necessary. As is discussed in greater detail below, there has been no demonstration of any event in service as to which any of the claimed disabilities may be linked, so as to warrant a VA examination with clinical opinion as to a possible relationship between any current disorder and military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board notes the VA scheduled examinations for the Veteran but he failed to report for them. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 (2012). With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by such standards must be currently present, and service connection is possible if a current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In Hensley v. Brown, 5 Vet. App. 155, the United States Court of Appeals for Veterans Claims held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. The service treatment records disclose the Veteran was referred for a psychiatric evaluation at the time of the enlistment examination in May 1982 due to a history of drug use. On mental status evaluation in June 1982, the Veteran was somewhat inappropriate. He displayed flashes of anger. The impression was passive-aggressive personality. It was recommended he be given a trial of duty. The Veteran was seen in the mental health clinic in March 1983. His main complaints were feelings of frustration, pressure and anger about his job environment. His mood was usually depressed and he experienced difficulty coping and getting along with superiors. It was stated he developed somatic complaints when he felt stressed. An examination revealed his mood was agitated and mildly depressed. The examiner noted that a review of the records revealed psychiatric interviews and passive-aggressive personality had been diagnosed at the enlistment examination. It was indicated the history supported the diagnosis. The assessment was that the Veteran's complaints about his current occupational and adjustment problems were consistent with his past history. He had difficulty coping with frustration and holding feelings and behavior in check. His mental status was clear, except for a situationally related mood. He was to return to duty without limitations. The Veteran was afforded a mental status evaluation in March 1984 when he was applying for conscientious objector status. The evaluation was within normal limits. The service treatment records show the Veteran was seen for complaints of right leg pain in July 1982. He was seen on numerous occasions from 1982 to 1984 for complaints relating to bilateral shin splints and bilateral knee pain. X-rays of the bilateral tibia and fibula in January 1983 showed no significant abnormality. X-rays of the knees in April 1983 revealed no acute bony abnormality, loose bodies or significant degenerative changes. He was variously found to have shin splints, knee pain, tendonitis and chondromalacia. The Veteran was seen in the orthopedic clinic in May 1983 for a chronic history of bilateral knee pain. It was noted examinations had been essentially within normal limits. It was concluded he had chronic symptoms without evidence of cruciate involvement. It was indicated the examination showed mild retropatellar involvement with negative patellar effusions. Audiograms in October 1982 and October 1983 were within normal limits. On a report of medical history in April 1986, the Veteran denied hearing loss. He reported painful joints and indicated he had occasional trouble with his knees swelling. The physician's summary notes a history of chondromalacia. The separation examination in April 1986 shows the ears, lower extremities, musculoskeletal system and a psychiatric evaluation were normal. An audiogram disclosed that the hearing threshold levels in decibels in the right ear were 0, 0, 5, 0 and 0, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 0, 0, 20, 0 and 0. The Veteran submitted his initial claim for service connection in June 2008. He did not list any treatment. VA outpatient treatment records disclose the Veteran reported in August 2008 that he had knee/shin problems during service from jumping out of trucks. The assessment was bilateral knee pain. X-rays from July 2008 revealed no degenerative joint narrowing in either knee. In September 2008, he described daily aching in his knees since service. When seen in November 2008, the Veteran again dated his knee pain to service. He indicated that around September 1982, his activity required recurrent jumping out of five-ton trucks and, since that time, both knees had been bothersome. The assessment was bilateral knee pain, etiology unknown. In May 2009, the Veteran presented with anxiety around his future and treatment choices. He was seen later that month to determine if an intensive substance abuse treatment program was appropriate. It was noted that his substance abuse/dependence was his primary Axis I diagnosis. The Veteran denied any psychiatric or psychological condition in June 2009, but acknowledged he did not know what depression or anxiety is. The Board concedes the Veteran was seen frequently during service for complaints relating to shin splints and knee pain. It is significant to point out that while he reported knee pain on the separation examination in April 1986, a clinical evaluation was normal. There was no indication of a bilateral knee disability or shin splints. The Board acknowledges the Veteran reported in 2008 that his knees have given him problems since service. The Board notes that a VA general medical examination was scheduled in October 2008, but the Veteran failed to report for the examination. He asserted he was not notified of the examination. The notice was apparently sent to his address of record, and there is no indication it was returned as undeliverable. The record reflects the Veteran has moved on a number of occasions, and some mail has been returned as undeliverable, with no forwarding address. In light of failure to report for the VA examination, the Board will, in accordance with the provisions of 38 C.F.R. § 3.655 (2012), adjudicate the claim on the basis of the evidence of record. The Board acknowledges the assertions of the Veteran that he has a bilateral knee disorder that is related to service. He is competent to report that he has experienced knee pain since service. As a lay person, however, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). There is no medical evidence linking a bilateral knee disability to service. In the absence of any indication of a bilateral knee disability for many years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. The service treatment records are negative for complaints or findings pertaining to bilateral hearing loss or tinnitus. The Board observes the Veteran was afforded a psychiatric evaluation at the time of his enlistment, and it was concluded he had a personality disorder. Pertinent findings in service were consistent with this assessment. It must be observed there is no current evidence of bilateral shin splints, bilateral hearing loss, tinnitus or an acquired psychiatric disability. With respect to the latter issue, the Board notes that he has asserted a psychiatric is secondary to a service-connected disability. However, service connection is not in effect for any disability and, therefore, there is no basis for a grant of service connection secondary to service-connected disability. In addition, Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As noted above, the record fails to establish the Veteran has the claimed disabilities. Accordingly, service connection for them may not be granted. The Board concludes the preponderance of the evidence is against the claims for service connection for a bilateral knee disability, bilateral shin splints, bilateral hearing loss, tinnitus and an acquired psychiatric disability. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a bilateral knee disability, bilateral shin splints, bilateral hearing loss, tinnitus or for an acquired psychiatric disability, to include on a secondary basis, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs