Citation Nr: 1312893 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-02 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for left knee osteoarthritis and chondromalacia. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection photorefractive keratectomy (PRK) with residual dry eye and halo. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from December 1977 to December 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. The Veteran testified at a hearing before the Board by videoconference from the RO in November 2012. A transcript of the hearing is associated with the claims file. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's left knee chondromalacia first manifested in service with a continuity of symptoms after service. 2. There is no competent evidence of bilateral hearing loss that meets the VA criteria for a disability. 3. The residual symptoms of a PRK procedure, diagnosed as dry eye and starbursts, first manifested in service after the procedure with a continuity of symptoms after service. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee chondromalacia are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303. 3.307, 3.309 (2012). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303. 3.307, 3.309, 3.385 (2012). 3. The criteria for service connection for residuals of photorefractive keratectomy (PRK) with dry eye and halo are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303. 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The application for benefits under the BDD program contained a notice that meets the requirements. The Veteran acknowledged the notice in September 2007. The notice informed the Veteran of all criteria to substantiate a service connection claim and explained the Veteran's and VA's respective responsibilities to obtain relevant evidence. In addition, VA has obtained the Veteran's service personnel and treatment records. The Veteran submitted additional evidence of treatment after service but has not identified any other sources of relevant and available evidence. VA has obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Veterans Law Judge (VLJ) who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the Board videoconference hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claim of service connection. The Veteran was assisted at the hearing by an accredited representative from a veteran's service organization. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to her service. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claim for service connection. The Veteran served in the U.S. Air Force with duties as an avionics technician and medical laboratory technician. She retired at the rank of Chief Master Sergeant. The Veteran contends that a left knee disorder, bilateral hearing loss, and photorefractive keratectomy (PRK) with residual dry eye and halo first manifested in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Certain chronic diseases, such as arthritis and organic diseases of the nervous system, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Left Knee Service treatment records contain clinical notations referring to a history of treatment prior to June 1991 for patellar femoral syndrome of the left knee. In August 1991, a clinician diagnosed left knee strain. In August 1992, a physical therapist diagnosed left patella-femoral syndrome. Subsequent records of treatment at a podiatry clinic showed that pes cavus and canceal spurs aggravated the left knee pain. The Veteran was issued orthotics and restricted from performing the running portion of the physical fitness test on several occasions. She was able to pass the test using a bicycle. In March 2006, a clinician noted that the bilateral knee pain was caused by degenerative joint disease but no imaging studies were included in the report. In April 2007, a clinician noted the Veteran's long history of left knee pain that was consistent with patellofemoral syndrome/chondromalacia and ordered imaging studies. X-rays showed tiny spurs in the medial tibial and femoral condyles, mild lateral displacement of the left patella, and some widening of the medial patellofemoral joint but no effusion. There were no reported symptoms of the right knee and a clinical examination of both knees was normal. No specific left knee symptoms or findings were noted by an examiner on a retirement physical examination in May 2007. In June 2007, a magnetic resonance image was obtained that showed chondromalacia in the left patellofemoral joint. There were no tendon or ligament deficits, significant effusion, or damage to the meniscus. The examiner recommended restriction in running for the remainder of the Veteran's active service. In December 2007, the Veteran underwent a VA compensation and pension examination of the left knee. The examiner noted the Veteran's report of the onset of left knee pain in 1985 when she needed to climb a steep ramp at work. The Veteran reported no traumatic injury or knee surgery. She reported current symptoms of daily moderate left knee pain when climbing stairs or at the end of the day. On examination, range of motion was normal and pain free. There was no increase in pain or reduction of range of motion after three deep knee bends. There was no lateral instability or meniscus defect. A concurrent X-ray was normal with no loose bodies or chondrocalcinosis. The examiner referred to a recent magnetic resonance image that showed arthritis but did not mention the date of the image. Arthritis was not shown in the image in May 2007. Nevertheless, the examiner diagnosed bilateral knee arthritis/chondromalacia. In February 2008, the RO granted service connection and a noncompensable rating for chondromalacia of the right knee but denied service connection for osteoarthritis and chondromalacia of the left knee. Decision line 9 and the codesheet showed that service connection and a noncompensable rating were granted for the right knee. However, the narrative of the decision in paragraph 9 indicated that service connection for the right knee was not warranted. In paragraph 21, the RO referred to an April 2007 magnetic resonance image of the left knee that showed chondromalacia with no osteoarthritis and the December 2007 VA examination that showed no functional loss but a diagnosis of osteoarthritis/chondromalacia. The RO denied service connection for the left knee because of the absence of functional impairment and X-ray evidence of a degenerative process. In an August 2011 letter, a military physical therapist and attending family practice physician noted that the Veteran had been under treatment for patellar femoral syndrome and chondromalacia of the knee cap since 2007 and enclosed the X-ray and magnetic resonance image reports from May and June 2007 that addressed the left knee only. In a November 2012 Board hearing, the Veteran stated that her bilateral knee symptoms first manifested at the same time when she worked in an avionics shop in the mid-1980s and routinely lifted heavy boxes and positioned equipment on a test stand. The Veteran stated that she was diagnosed with patellofemoral syndrome and chondromalacia of both knees based on imaging studies and provided physical therapy. The Veteran further stated that she experienced extreme pain during the testing in the December 2007 examination that was not reflected in the examination report. The Board concludes that service connection for patellofemoral syndrome and chondromalacia of the left knee is warranted. Service treatment records show that the Veteran was diagnosed and treated for left knee patella strain and pain for many years and imaging studies in May and June 2007 supported the diagnosis of chondromalacia but not degenerative arthritis. Even though examinations at military clinics and the December 2007 VA examination showed no impairment such as limitation in range of motion, mobility endurance, instability, or meniscus damage, the examiners diagnosed chondromalacia. Furthermore, the Veteran was restricted in running for the at least the last four months of active service because of the left knee. Service connection for left knee chondromalacia is warranted. The nature and degree of impairment is a matter of an appropriate rating that is under the jurisdiction of the RO in the first instance. Bilateral Hearing Loss For VA purposes, impaired hearing is 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. Service treatment records contain several hundred pages of clinical and medical test reports but there are no records of any audiometric testing. In a May 2007 retirement physical examination, the examiner listed over 30 medical complaints or on-going disorders, but none were related to hearing acuity deficits. The examiner noted the Veteran's report of no difficulty understanding speech. However, in a September 2007 eye examination, the listing included "hearing loss" without clinical comments or explanation. In December 2007, a VA audiologist noted the Veteran's reports of exposure to machinery, vehicle, aircraft, and gunfire noise on active duty and constant tinnitus for the past 15 years. Audiometric test results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 20 15 LEFT 15 10 10 10 10 Speech discrimination was 100 percent bilaterally. In a November 2012 Board hearing the Veteran stated that she was assigned duties in avionics repair in workshops (not on the flight line) for the first 14 years of active duty career. In the next 16 years, the Veteran stated that she was a medical laboratory technician and administrative supervisor. While working in the avionics shop she was exposed to high levels of noise from a cryogenic converter without hearing protection and was required to undergo annual hearing tests. During her work as a hospital technician, she was exposed to occasional construction noise. The Veteran stated that after active duty she worked in tax preparation with no noise exposure. The Veteran reported that she was referred to a civilian audiologist for testing in May 2007 and would seek to obtain the records that reportedly showed hearing acuity loss. The Veteran stated that she currently has difficulty hearing conversations in high background noise. No additional evidence of a current hearing disability has been received. The Board concludes that service connection for bilateral hearing loss is not warranted because the credible medical evidence of record shows that the Veteran had normal hearing at the time of her retirement from active duty in 2007. Puretone thresholds at all applicable test levels were less than 26 decibels and speech discrimination scores were greater than 94 percent. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, VA fulfilled its duty to obtain a medical examination in December 2007 following receipt of the Veteran's BDD claim. Since that examination, the Veteran reported that she experiences difficulty hearing conversations but has not identified or submitted any evidence of audiometric testing that was performed either during or after active service that would demonstrate a loss of hearing acuity that meets the VA criteria for a disability. The duty to assist is predicated on the requirement that the claimant provide sufficient information to identify the relevant records. 38 U.S.C.A. § 5103A(b)(1). The duty to assist is limited to specifically identified documents that by their description would be facially relevant and material. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) and Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991)). The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In this case, the Veteran is competent to report that she has difficulty hearing conversations but is not competent to establish that the reduced acuity meets the criteria for disability as this must be determined by audiometric testing. The weight of the credible and probative evidence demonstrates that the Veteran's sensed degradation of hearing acuity does not meet the criteria for a current disability. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Photorefractive Keratectomy Residuals Service treatment records showed that the Veteran underwent a bilateral elective photorefractive keratectomy (PRK) in March 2003 to correct refractive error. Follow-up examinations within the first year after the procedure showed symptoms of starbursts and dry eye. The Veteran was prescribed rewetting drops but no corrective surgical or laser procedures. In a June 2006 annual eye examination, the examiner noted the Veteran's report of decreased night vision. The examiner noted slightly less than 20/20 uncorrected vision with no eye abnormalities, diagnosed presbyopia, and prescribed reading glasses. In September 2007, an examiner noted the Veteran's report of dry eyes and slightly blurred vision at night. The examiner continued the prescriptions for reading glasses and lubricating drops. In February 2008, the RO denied service connection for PRK with residual dry eye and halo because PRK eye surgery was an elective surgery for the purpose of refractive correction and not subject to service connection and because dry eye syndrome and halos were not subject to service connection without residual visual loss, ocular pathology, or associated chronic condition. The legal basis for this conclusion was not provided in the statement of the case. The RO referred to an undated VA examination that showed normal findings through visual field testing, visual acuity testing, fundus exam, and slit lamp evaluation. The RO noted that the VA examiner found a full visual field and visual acuity correctable to 20/20 bilaterally but also diagnosed dry eye syndrome. Although the RO referred to a VA examination, none is of record in the electronic file. The cited examination results are similar to that noted by a military examiner in September 2007 except that uncorrected acuity was 20/20 and that there was no visual field testing. In a November 2012 Board hearing, the Veteran stated that she continued to experience starburst patterns in a dark environment that impaired depth perception while driving. She also stated that she continued to experience dry eyes and used rewetting drops to avoid eye pain. She stated that a contract ophthalmologist in service told her that the PRK procedure should not have been performed on her because of the size of the pupils of her eyes. The Board concludes that service connection for residuals of a PRK procedure, diagnosed as dry eye and starbursts or halo is warranted. Notwithstanding the missing record of a VA eye examination, the available record does establish that the Veteran has a continuity of symptoms of dry eye and starbursts since the procedure. There is no exclusion for residual symptoms of an elective procedure on active duty if those symptoms represent a current disorder that was caused or aggravated by the result of the procedure. Even though the procedure was elective and performed in order to correct refractive error that itself is not subject to service connection, the dry eye and starburst or halo symptoms are residuals of the procedure that continued after service to the present. The Board does not address the nature or degree of impairment imposed by the residual symptoms because that is a matter of rating the disability under the jurisdiction of the RO in the first instance. ORDER Service connection for left knee chondromalacia is granted. Service connection for bilateral hearing loss is denied. Service connection for residuals of a photorefractive keratectomy (PRK) with dry eye and halo is granted. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs