Citation Nr: 1314519	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  09-41 247	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a left knee/lower extremity disability, claimed as secondary to service-connected fracture, left ankle with degenerative joint disease.

4.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss.  


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

D. Schechner, Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from November 1968 to November 1970.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Muskogee, Oklahoma RO.  At the Veteran's request a hearing was scheduled at the RO in March 2009; it was cancelled pursuant to his withdrawal of the hearing request.  In May 2011, these matters were remanded for additional development.

The May 2011 decision/remand also remanded a claim of service connection for a right knee disability.  An unappealed July 2011 rating decision granted service connection for degenerative arthritis of the right knee with surgical scars, as secondary to service-connected fracture, left ankle with degenerative joint disease (and assigned a rating and effective date for the award).  Therefore, the matter regarding the right knee is not before the Board.

The issue of reopening a claim of service connection for left ear hearing loss is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action on his part is required.


FINDINGS OF FACT

1.  A right ear hearing loss and tinnitus were not manifested during the Veteran's service; right ear sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that either the Veteran's right ear hearing loss or his tinnitus is related to his service.

2.  The preponderance of the evidence is against a finding that the Veteran's current left knee/lower extremity disability was either caused or aggravated by his service-connected fracture, left ankle with degenerative joint disease. 


CONCLUSIONS OF LAW

1.  Service connection for right ear hearing loss and tinnitus is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).

2.  Service connection for a left knee/lower extremity disability, to include as secondary to fracture, left ankle with degenerative joint disease, is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims.  September 2008 and July 2011 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  These letters also informed the appellant of disability rating and effective date criteria.  He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate.

The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The RO arranged for VA examinations in July 2009, October 2009, and July 2011, which will be discussed in greater detail below, though the Board finds these examinations, cumulatively, to be adequate as they included both a review of the Veteran's history and a physical examination that included all necessary findings.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is also met.  Accordingly, the Board will address the merits of the claims.

                             Legal Criteria, Factual Background, and Analysis

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; 38 C.F.R. § 3.303(a).  In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

A disease diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Lay evidence may be competent evidence to establish incurrence.   See Davidson v. Shinseki, 581 F. 3d 1313 (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, (e.g., a broken leg), (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 (Fed. Cir. 2007).  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Id.

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.  Competent medical evidence may 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).

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence that is relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence.  See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. 




Right Ear Hearing Loss and Tinnitus

Because sensorineural hearing loss (SNHL) is an organic disease of the nervous system, it may be service connected on a presumptive basis if manifested to a compensable degree in the first year following a Veteran's discharge from active duty.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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 requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Thus, a claimant who seeks to establish service connection for a hearing loss disability must show (as is required in any claim of service connection) that such disability is due to injury or disease incurred or aggravated in service, the determination of which depends on a review of all the evidence of record including that pertinent to service.  

The Veteran claims that his right ear hearing loss and tinnitus arose as a result of his exposure to noise trauma in service.  (Left ear hearing loss, as explained in the Introduction, is not before the Board at this time)  He has stated that he was assigned guard duty on post and flight line guard duty, and qualified as marksman on the M-14 (rifle) and expert with .45 caliber (pistol)  

The Veteran's service personnel records show that his duties in the Marines were "administrative man" (clerk), and that he did not have any foreign service.  

The Veteran's STRs are silent for complaints or findings pertaining to hearing loss or tinnitus.  Whispered voice testing on service separation examination showed normal (15/15) hearing for the right ear. 

Postservice treatment records show an initial notation of right ear hearing loss on private audiological examination in February 2009.  The impression was of mild high frequency SNHL in the right ear, and severe to profound high frequency SNHL in the left ear.  The Veteran also reported left ear tinnitus.

On July 2009 VA audiological examination, the Veteran reported that his MOS in service was a clerk (administrative man) with a Marine aviation wing, with intermittent noise exposure from flight operations and no hearing protection.  He reported industrial noise exposure from working in a Goodrich tire plant for 14 years with no hearing protection.  He reported recreational noise exposure including hunting with intermittent hearing protection worn.  He denied any history of ear infections or surgeries, previous use of hearing aids, aural fullness or vertigo, or skull fracture.  He reported that his father wore hearing aids and was a World War II veteran.  The examiner noted that an MRI (to rule out an acoustic neuroma) was normal.  The Veteran complained of bilateral tinnitus, described as an intermittent ringing in the right ear and a constant hissing sound in the left ear; onset of tinnitus was reported as approximately 15 years earlier (in 1994) with gradual increase.

On audiological evaluation, puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
5
10
15
25
30

The average right ear puretone threshold was 20 decibels.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear.  The diagnosis was mild high frequency SNHL in the right ear and a severe high frequency SNHL in the left ear for frequencies used in disability determination.  Puretone Stenger's were negative, and cooperation and reliability were good.  

The July 2009 VA examiner noted that no claims file had been provided, therefore no opinion could be offered.  [The examiner did opine that the Veteran's tinnitus "is as likely as not a symptom associated with the hearing loss".]

On October 2009 VA audiological examination, the Veteran complained that he could not hear his grandchildren and that background noise caused difficulty localizing to sounds, which he believed caused safety concern issues.  He reported that he was trained as a clerk in service and was exposed to flight line noise.  He reported that he fired his rifle left-handed while on the rifle range.  He reported military noise exposure as rifle fire on the range during basic training and during requalification as well as flight line noise at his permanent station.  He reported civilian employment at BF Goodrich Tires for 14 years and then the Post Office for 20 years, with no significant noise exposure during civilian employment.  He reported going hunting on occasion, with hearing protection.  He denied any other significant noise exposure.  He denied any history of ear disease, head or ear trauma, or family history.  He reported constant unilateral tinnitus in the left ear, with unknown date or circumstances of onset.  Otoscopic examination revealed no abnormalities of the pinnae, EAC or the tympanic membranes, both of which were intact and normal in color.

On audiometry, puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
5
15
15
20
35

Average puretone threshold was 21.25 decibels for the right ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear.  Diagnostic Product Otoacoustic Emissions (DPOE) testing revealed normal cochlear function for the right ear through 4000 Hertz with cochlear damage at 6000 Hertz, and cochlear damage/pathology in the left ear at 3000 through 6000 Hertz; these results were noted to be supportive of the puretone test results.  Impedance tests revealed normal type "A" tympanograms bilaterally.

The October 2009 VA examiner diagnosed mild high frequency SNHL for the right ear and a severe to profound SNHL for the left ear.  Speech discrimination ability was considered "excellent" bilaterally, and impedance tests were supportive of normal middle ear function.  The examiner noted the Veteran's service duties as a clerk, with no combat service, and his current contentions that his hearing loss was caused by exposure to rifle fire and flight line noise.  The examiner noted no complaints or treatment for tinnitus or hearing loss in service, specifying that the entrance and exit physicals showed normal hearing sensitivity bilaterally.  The examiner noted that, although the separation examination used the "whisper test" to show normal hearing sensitivity, the Veteran signed his physical, stating that he was in good health.  The examiner noted that even though the Veteran was exposed to rifle fire during basic training and possibly flight line noise in service, there was no indication of hearing loss or tinnitus reported or noted on any record in the claims file.  The examiner opined that "it is not likely that [the Veteran's] military service caused, contributed to, or aggravated his current hearing loss and/or tinnitus." 

On July 2011 VA examination, the Veteran complained of difficulty localizing sound.  He described the effects of his condition as difficulty understanding his grandchildren and when utilizing a telephone.  He reported using a hearing aid in the left ear, issued approximately one year earlier by VA.  He reported the onset of tinnitus several years earlier in the left ear only, although he could not recall a specific date or circumstances for the onset.  The Veteran reported noise exposure during basic training from firing M-16, M-14, and .45 caliber firearms, without hearing protection.  He reported postservice occupational noise exposure from operating a front end loader and tractors (without hearing protection) for three months with Allied Roofing; as a tire builder for the BF Goodrich Company for 14 years with occasional use of hearing protection devices; and from working in maintenance with weed eaters and lawnmowers for 3 years for Wyandotte Tribe of Indians.  He reported recreational noise exposure from occasional shooting (with hearing protection) and from woodworking.  The examiner noted that the Veteran's October 1968 service enlistment examination reflected hearing sensitivity within normal limits from 500 through 4000 Hertz for the right ear.  The examiner further noted that the claims file did not contain any records of diagnosis of, or treatment of, hearing loss or tinnitus during military service or within one year of discharge from service.  The examiner cited the findings on the July 2009 and October 2009 VA examinations, noted above.  The examiner then analyzed the February 2009 private evaluation, finding the results to be consistent with hearing sensitivity within normal limits from 250 through 3000 Hertz sloping to a mild SNHL from 4000 through 8000 Hertz for the right ear; a word recognition score of 90 percent was recorded for the right ear.

On audiometry, puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
5
10
20
25
45

Average puretone threshold was 25 decibels for the right ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear.  Acoustic immittance testing revealed a type A tympanogram for the right ear.  The diagnosis for the right ear was hearing sensitivity within normal limits from 250 through 3000 Hertz sloping to a moderate SNHL of combined type at 4000 Hertz and rising to a mild hearing loss from 6000 through 8000 Hertz.  The examiner found the test results to be consistent with the previous evaluations in February 2009, July 2009, and October 2009.

The July 2011 examiner opined that it is less likely than not (less than 50/50 probability) that the Veteran's right ear hearing loss is caused by or a result of acoustic trauma from military service.  The examiner noted the entrance and discharge service examinations, both of which were consistent with hearing sensitivity within normal limits for the right ear, although the separation examination only reported whispered speech.  The examiner noted that the claims file does not contain any records of diagnosis or treatment of hearing loss or tinnitus during military service or within one year of discharge from service.  The examiner noted the civilian occupational history of noise exposure.  Based on these findings, the examiner reiterated that the current right ear hearing loss is less likely than not caused by or a result of acoustic trauma from military service.

The July 2011 examiner further opined that the Veteran's tinnitus is less likely than not (less than 50/50 probability) caused by or a result of acoustic trauma from military service.  The examiner again cited the entrance and discharge service examinations, the lack of diagnosis or treatment of tinnitus during service, and the positive civilian occupational history of noise exposure.  The examiner noted the Veteran's report on July 2009 VA examination that the onset of the tinnitus was approximately 15 years earlier (placing it at some time after his discharge from service).  The examiner further noted the report on current examination placing the onset of tinnitus as "several years ago", with no specific recall to a time of onset or circumstances of onset.  The examiner therefore opined that the Veteran's tinnitus is less likely than not (less than 50/50 probability) caused by or a result of acoustic trauma from military service.

It is not in dispute that the Veteran now has right ear hearing loss and tinnitus.  The hearing loss (by VA standards) was confirmed by July 2011 VA audiometry; and tinnitus is a disability the existence of which is essentially established by subjective complaints (the record provides no reason to doubt the Veteran's accounts that he has tinnitus).  However, as neither disability is shown (or alleged) to have been manifested in service, service connection on the basis that these disabilities became manifest in service and persisted, or on a chronic disease presumptive basis (for SNHL as an organic disease of the nervous system under 38 U.S.C.A. § 1112) is not warranted.  

What remains for consideration is whether the right ear hearing loss and tinnitus are somehow otherwise shown to be etiologically related to the Veteran's service.  The Board finds the various audiometric findings to be consistent with the July 2011 VA examiner's opinion, which is entitled to great probative weight, as it took into account the complete factual record, the Veteran's reported history, and full audiometric/audiological evaluation, and provides rationale for the conclusions reached, citing to the lengthy post-service intervening period before pertinent complaints were noted, and the extensive postservice occupational noise exposure.  Because there is no competent evidence to the contrary, the Board finds the VA examiner's opinion to be persuasive.  

The Veteran's own lay opinion is not competent evidence in this matter.  The matter of a nexus between a recently appearing [right ear] hearing loss disability and/or tinnitus and noise exposure during military service (particularly in military occupations not especially known as subject to exposure to excessive noise trauma), especially in light of existing alternative etiological factors for the hearing loss (such as postservice exposure to occupational noise and the aging process) is a complex medical question.  See Jandreau, 492 F.3d at 1377.  The Veteran does not cite to supporting factual data , supporting medical literature, or supporting medical opinion.     

In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims of service connection for right ear hearing loss and tinnitus.  Accordingly, they must be denied.

Left knee/lower extremity

Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis).  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006).

Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected.  However, 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.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310 (b).  

The Veteran previously claimed that his left knee/lower extremity disability began during service and persisted.  An unappealed April 2005 rating decision denied such service connection claim.  The Veteran has not requested that the previously denied claim be reopened or submitted new and material evidence in support of a direct service connection claim.  That decision is final.  See 38 U.S.C.A. § 7105. Therefore, the Board will not address now a direct service connection theory of entitlement.  The Veteran's instant claim proposes a theory of entitlement to the benefit sought that is solely one of secondary service connection.  He contends that a left knee/lower extremity disability developed secondary to his service-connected fracture, left ankle with degenerative joint disease (henceforth "left ankle disability").  

The Veteran's STRs include February 1970 X-ray results for the left leg, which were negative for fracture or significant abnormalities.  

On January 1972 private report by Dr. J.M., the Veteran reported injuring his left ankle in April 1969 when he fell down some stairs in service.  He reported that he had fractured his ankle and was in a cast for approximately 6 months, after which he began having difficulty with his left knee.  He reported that the knee felt weak, without swelling, and seemed to "catch" when coming up from a squatting position.  He reported that the knee felt "like it want[ed] to slip outward".  Dr. J.M. noted that the Veteran "probably sprained his left knee" at the time he injured his left ankle.  There was no evidence of any internal derangement on examination.  He noted that the left ankle had a fracture of the lateral malleolus and the lateral aspect of the tibia into the articular surface.  Dr. J.M. noted "a very early X-ray evidence which [was] still quite mild of traumatic arthritis, and would be producing some of his symptoms".

The treatment records indicate that the Veteran underwent arthroscopy and partial medial meniscectomy with debridement of the left knee in August 2003.  The postoperative diagnosis was medial meniscal tear and degenerative joint disease of the left knee.  X-rays at that time revealed mild degenerative changes in both knees.  The treatment records further indicate that the Veteran underwent a left total knee arthroplasty in July 2007.

In a September 2008 statement in support of this claim, the Veteran requested service connection for the left knee as secondary to his left ankle fracture, and he requested service connection for arthritis of the left lower extremity as a result of years of wear and tear.

In a March 2009 medical statement, Dr. S.M. noted that he had treated the Veteran for "spinal related symptoms" for approximately 15 years.  He noted that he had observed the Veteran to have "marked symptoms to his ... left leg".  He stated that the Veteran's "history involves a previous injury to his lower back and leg/ankle fracture from a fall while in the Marine Corps in 1968" and that "[s]ubsequently the injury never healed properly".  He noted that, in treating the Veteran, it had been evident that due to the left lower extremity being rotated laterally, it had affected his gait and lower back significantly, and the Veteran required periodic care for exacerbation and flare-ups to the lumbar spine and pelvic distortion.

July 2010 X-rays of the left knee show no acute fracture or significant bony abnormality, no hardware complications, and satisfactory alignment status post total knee arthroplasty.

On July 2011 VA examination, the Veteran reported that he injured his left ankle near the end of his personnel training course, after which he was treated non-operatively with a series of casts, most of which were long-leg casts.  He reported that he had had some discomfort in the left knee since the 1970s, and he had used horse liniment on the knee since that time.  He reported that his left knee pain had become gradually worse over the years, requiring arthroscopic surgery in 2003, and total knee arthroplasty in July 2007.  He believed that, although he did not apparently have any specific complications following the operation, his left knee had been in what he considered to be more valgus alignment than it was prior to surgery.  He reported that the knee felt better than it did pre-operatively, but he still had some knee pain and was not very pleased with the outcome of the left total knee arthroplasty.  

On physical examination, the Veteran was obese and in no acute distress.  He used a cane and walked somewhat slowly and cautiously.  Some increased valgus alignment was noted on observation and on X-ray.  The impressions included history of degenerative joint disease of the left knee, status post total knee arthroplasty.  The examiner opined that the etiology of the degenerative joint disease of the left knee is most likely related to the Veteran's age and obesity.  The examiner specifically opined that it is not at least as likely as not that the left knee degenerative joint disease was caused or aggravated by the service-connected left ankle disability.  The opinion was based on the fact that degenerative joint disease of the knee is common in middle aged people, especially in those who are obese.  The examiner opined that the left knee degenerative joint disease is not related to the Veteran's military service or to his left ankle post-traumatic arthritis.
 
The Veteran has also submitted VA treatment records through August 2012 showing findings similar to those on the VA examinations outlined above, and without any further medical opinions regarding the etiology of the left knee/lower extremity disability.

The preponderance of the evidence is against the Veteran's alleged secondary service connection theory of entitlement to the benefit sought.  On July 2011 VA examination (the report of which the Board found adequate and probative), the examiner opined that the Veteran's left knee/lower extremity complaints are unrelated to his service-connected left ankle disability.  The provider noted the history of the claimed disability, and thoroughly explained the rationale for the opinion.  The examiner provided further rationale for the opinion by identifying other etiological factors for the left knee/lower extremity complaints, including chronic degenerative changes associated with aging and obesity.  The Board finds this evidence highly probative in the matter at hand.  Because there is no competent (medical opinion/treatise) evidence to the contrary with opinion supported by any explanation, the Board finds the July 2011 VA examiner's opinion to be persuasive.  

Regarding the Veteran's own opinion that his left knee/lower extremity disability is due to his service-connected left ankle disability, he is a layperson (with no demonstrated or alleged expertise in determining whether there is a nexus between arthritis of the spine with that of other joints); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion.   Therefore, his opinion on this question of causality (which is medical in nature and beyond lay observation) has no probative value.  See Jandreau, 492 F.3d, at 1372, 1377.

In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a left knee/lower extremity disability.  Accordingly, the appeal in the matter must be denied.


ORDER

Service connection for right ear hearing loss is denied.

Service connection for tinnitus is denied.

Service connection for a left knee/lower extremity as secondary to a service-connected left ankle disability, is denied.


REMAND

In an April 2005 rating decision, the RO denied service connection for left ear hearing loss, based essentially on a finding that there was no evidence a nexus between such disability and the Veteran's service (no evidence of hearing loss or noise trauma in service).  The Veteran did not timely appeal that decision, and it is final.  38 U.S.C.A. § 7105.  The Veteran's September 2008 service connection claim for hearing loss sought to reopen a previously denied claim.  The November 2008 rating decision on appeal addressed only the right ear; in the May 2011 remand, the Board instructed that the claim regarding left ear hearing loss be remanded for development and adjudication by the RO.  The record does not suggest that a rating decision was issued regarding this matter; rather, it appears the request to reopen the claim of service connection for left ear hearing loss was considered solely in the September 2012 supplemental statement of the case (SSOC).  An SSOC cannot serve to announce decisions on issues that were not previously adjudicated.  38 C.F.R. § 19.31(a).  Therefore, the matter must be remanded once again.  See Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

With respect to left ear hearing loss, the RO should provide the Veteran the notice appropriate in claims to reopen, afford him opportunity to respond and arrange for any further development indicated, and then adjudicate his pending request to reopen the claim of service connection for left ear hearing loss.  This adjudication must be in a rating decision; adjudication in a supplemental statement of the case is not sufficient.

If the determination is negative, he should be so advised, and also advised of his appellate rights and that the matter will be before the Board unless he initiates (and perfects) an appeal in the matter. 

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs