Citation Nr: 1311560 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 12-10 268 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for residuals of a right little finger injury. 3. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1957 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Acting Veterans Law Judge at a March 2013 hearing. 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 Virtual VA file does not reflect any additional records pertinent to the claim remaining on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. It is at least as likely as not that the Veteran has residuals of an injury to his right little finger that occurred in service. 2. It is at least as likely as not that the Veteran's bilateral hearing loss is due to his service. 3. A bilateral knee disability did not manifest in service or within one year of separation, and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. Residuals of an injury to the right little finger were incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A bilateral hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 3. A bilateral knee disability was not incurred in, or aggravated by, service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in October 2009 that explained how VA could assist him with developing his claims. The October 2009 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as explained how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including private treatment records, employment treatment records, written statements from the Veteran's private physicians, and a transcript of the Veteran's testimony at the March 2013 hearing. The Veteran was afforded appropriate examinations with regard to his hearing loss and his knees. While he was not provided with an examination with respect to his right little finger injury, since that claim is granted herein, the failure to provide an examination is not prejudicial. The Board finds that VA satisfied the requirements of the VCAA in this case. Service Connection The Veteran contends that he developed a hearing loss disability, residuals of a right little finger injury, and a bilateral knee disability in service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including arthritis and sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2003) (noting that the continuity of symptomatology provisions apply to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A. Hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. The Veteran's service treatment records do not show complaints of, or treatment for, hearing loss. At his March 1960 separation examination, whispered voice test was 15/15 bilaterally; the Veteran was not administered an audiogram. In various written statements, the Veteran reported that while in service he was assigned as an avionics electrician on propeller and jet aircraft. The environment was very noisy, and while he was working on the propeller aircraft no hearing protection was provided. He was given ear protection while working on the jets, but it was not sufficient to muffle the enormous noise. He reported that his hearing loss had been gradual since his time in the military. Review of the Veteran's DD-214 indicates that the related civilian occupational specialty was airplane electrician, so his exposure to this noise is conceded. In April 2010, the Veteran was afforded a VA examination, which revealed a bilateral hearing loss disability for VA purposes, in accordance with 38 C.F.R. § 3.385. While noting that noise exposure of the type the Veteran reported could cause hearing loss and the relationship between hearing loss and tinnitus, she opined that the Veteran's hearing loss was less likely related to service. She reasoned that the Veteran had reported hearing loss which onset 25 years ago, which is long after service, so the most likely etiology was post-service occupational noise exposure. The Veteran submitted a September 2010 statement from a private physician opining that given the Veteran's exposure to loud noise in the military without hearing protection, it was at least as likely as not that the Veteran's hearing loss was related to his military service. At the Veteran's March 2013 hearing, the Veteran testified to his noise exposure in the military from propeller and jet aircraft. He testified that after service he was a tool and die maker, and the amount of noise he was exposed to occupationally was about as loud as a television. He reported that he first noticed his hearing loss about 6 or 8 months after service, when the Veteran started dating his present wife. She would point out that he needed things to be repeated and had difficulty hearing movies at the theater. He reported that he failed hearing tests that were administered by his employer in the 1960s; however he said he was unable to obtain these records. Resolving the benefit of the doubt in the Veteran's favor, it is at least as likely as not that his hearing loss is related to military service. The Veteran was exposed to loud noise in service and credibly testified that he noticed he had difficulty hearing within a year after service. While the VA examiner opined that the Veteran's hearing loss was not related to service, she based her opinion on the belief that the Veteran's hearing loss onset long after service, and that he was exposed to loud noise as a tool and die maker. However, the Veteran testified that he experienced hearing loss shortly after service and that he was not exposed to loud noise after service. Therefore, the foundation of her opinion is erroneous. The Veteran submitted a letter from a private physician who opined that given the Veteran's in service noise exposure, it was at least as likely as not that his hearing loss was related to service. The Board finds this opinion more probative than the VA examiner's opinion because the VA examiner's opinion was based on an erroneous factual premise. For these reasons, service connection for a bilateral hearing loss disability is granted. B. Residuals of an injury to the right little finger. In a March 2010 written statement, the Veteran related that he injured his finger in basic training and it became very infected after it was wrapped. It was treated with medication and soaks. Since that time, his finger would not bend at the first point. The Veteran's service treatment records do not document an injury to the Veteran's right little finger. However, the Veteran submitted a picture of himself in uniform showing that his right hand was wrapped and his finger was in a splint. At his hearing, the Veteran testified that he injured his right little finger in service and initially was unable to close it to make a fist. It was splinted, but became infected after that, and eventually it was treated with antibiotics and soaking. After that, his finger would not bend. He testified that he also had a small scar from the injury. The Veteran submitted a letter from his doctor, who related this history provided by the Veteran. He noted that the Veteran lost the ability to flex the distal interphalangeal joint of his right little finger. Resolving the benefit of the doubt in the Veteran's favor, it is at least as likely as not that he has residuals of a right little finger injury in service. While service records do not document the injury, the Veteran submitted a photograph of himself with his finger in a splint which corroborates his testimony about his right little finger. The Veteran noted that since that time he could not flex the first joint of the finger. The Veteran's doctor confirmed that the Veteran is unable to flex the distal interphalangeal joint of the right little finger. For these reasons, service connection for residuals of a right little finger injury is granted. C. Bilateral knee disability In a March 2010 written statement, the Veteran related that he injured his knees in a sporting accident in service. His knees swelled and he was unable to walk. His knees were opened and drained multiple times and he was placed on limited duty. Since that time, his mobility was hampered. He eventually had to have partial knee replacements. Service treatment records show two instances of a swollen left knee, in September 1957 and in December 1959. There is no documentation of any problems with the Veteran's right knee. On his separation physical in March 1960 he denied having arthritis or a trick or locked knee. The Veteran did not list any injuries and examination showed normal lower extremities. Employment treatment records show that post-service the Veteran fell on both knees while playing ball in 1964. There was a small abrasion on the left knee. There is no record of recurrent knee complaints during the Veteran's employment from 1963 to 1990. Private treatment records from Dr. Gunckle indicate that the Veteran was scheduled for left knee arthroscopy in September 2004. At that time, the Veteran did not report any specific injury; but did indicate that he played sports over the years. Following diagnoses of degenerative joint disease, he underwent a left knee arthroplasty in November 2004 and right knee arthroplasty in January 2005. In a February 2009 letter, Dr. Gunckle opined that he Veteran had significant posttraumatic arthritis and partial knee replacements as a result of the football injury in service. The Veteran was afforded a VA examination of his knees in April 2010. At that time, the Veteran reported that he gradually began to experience knee pain about 10 or 12 years prior. He reported that he injured his knees in service playing football and the left knee was aspirated. Thereafter, his knees would swell up every now and then and he had knee pain. After examination and x-rays the Veteran was diagnosed with unicondylar knee arthroplasty involving the medial compartment of the joints and degenerative changes in other areas of the joint. The examiner opined that the Veteran's bilateral knee disability was less likely than not related to his in-service injury. He reasoned that the Veteran was 76 years old and the degenerative changes in his skeletal system were consistent with his age, which was the reason for his knee surgery. At his March 2013 hearing, the Veteran testified that he was injured in service while playing football. He went back to work and his knees began to swell up. One of the knees was aspirated. Since that time, he had knee pain on and off until he got knee replacements. The Veteran testified that after the football injury his knee would give out or swell up if he made a wrong movement. Sometime in the 1970s he injured his knee again at work. The evidence does not show that it is at least as likely as not that the Veteran's arthritis of the knees and partial knee replacements are due to service or that the knee arthritis onset within one year of service. Although the Veteran may have injured his knees playing football in service, the evidence does not support continuing knee problems since that time. There are only two entries in the service treatment records regarding a swollen left knee and nothing regarding the right knee. The Veteran did not report any knee problems at his separation examination and his lower extremities were found to be normal. The Veteran did not complain of recurrent knee problems at work from 1963 to 1990. At his VA examination in 2010 the Veteran reported that his knee pain onset 10 or 12 years ago. This does not support a history of continuing knee pain since service, and the Veteran's allegations in that respect are not credible. The Veteran's physician opined that the Veteran's knee problems were posttraumatic arthritis as a result of the in-service football injury. In contrast, the VA examiner found that there were degenerative changes that were consistent with the Veteran's age and that this was the cause of his knee replacements. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. Although VA may not discount a private medical opinion merely because the private physician did not review the claims file, the Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Further, an opinion that is speculative has limited probative value. See, e.g., Bostain v. West, 11 Vet. App. 124, 127-128 (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) ( a medical opinion that a particular event "may" have led to the Veteran's disability is too speculative to establish a causal relationship)). In this regard, the Board finds that the opinion of the VA examiner is more probative than that of the private physician. The VA examiner had access to the Veteran's service treatment records, post-service treatment records, and employment health records. It is unclear what, if anything, the private physician reviewed prior to authoring his opinion. The private physician did not note the long period with few knee complaints in and after service, nor did he account for degenerative changes that would in any event be present due to the Veteran's age. Significantly, the private physician's underlying treatment records reflect that the joint changes were described as degenerative in nature rather than posttraumatic. For these reasons, the Board finds the private physician's opinion less probative than that of the VA examiner. The Board has also considered the Veteran's statements linking his current bilateral knee disability to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of arthritis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the service connection for a bilateral knee disability is denied. ORDER Service connection for hearing loss is granted. Service connection for residuals of a right little finger injury is granted. Service connection for a bilateral knee disability is denied. ____________________________________________ SONJA A. MISHALANIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs