Citation Nr: 1317232 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-46 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a left knee disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active military duty from July 1961 to March 1965, and from March 1965 to December 1968. The Veteran was discharged from his second period of service under other than honorable conditions. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that, in pertinent part, denied entitlement to service connection for bilateral hearing loss, tinnitus, residuals of a left knee injury, and a psychiatric disorder. The Veteran and his wife provided testimony before the undersigned Veterans Law Judge at the RO (Travel Board hearing) in August 2012; a transcript of the hearing has been associated with the record. In March 2013, the Board remanded the claim to obtain ongoing VA treatment records and December 2009 VA examination reports. In April 2013, the Appeals Management Center (AMC) granted entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder with post traumatic stress disorder features and depression and assigned a 50 percent disability rating, effective May 3, 2005 and a 100 percent disability rating, effective October 31, 2005. 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). The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Although not found on the examination for entrance in to service, the Veteran clearly and unmistakably had pre-existing left knee disability, which underwent an increase of severity during active service. 2. The evidence does not clearly and unmistakably show that in increase in the Veteran's left knee disability was due to the natural progress of the disability. CONCLUSION OF LAW A left knee disability, clearly and unmistakably pre-existed entrance into the Veteran's active service, but was aggravated during his active service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. II. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In the present case, as will be discussed further below, the diagnoses or other indications of arthritis of left knee during service and within one year after his discharge from service may legitimately be questioned. Accordingly, a presumption of service connection for arthritis of the left knee is not warranted pursuant to the provisions of 38 C.F.R. §§ 3.307 and 3.309(a). However, for such chronic diseases as specifically listed at 38 C.F.R. 3.309(a), including arthritis, service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). The Federal Circuit has held that "[l]ay 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"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis The Veteran contends that he sustained an in-service left knee injury in September 1963 when he fell off of a ladder and has had ongoing residuals. He indicated that at the very least any pre-existing left knee disorder was aggravated by his service, as evidenced by the five year time lapse between his pre-service, 1958 motorcycle accident and the first time he had a knee complaint in September 1963. See August 2012 statement. He also reported that his left knee was aggravated in service as a result of multiple falls and contusions. See January 2008 Notice of Disagreement, December 2009 VA examination report, and November 2010 Form 9. During his August 2012 Travel Board hearing, he reported that at the time of his in-service injury from falling off of the ladder. He reported that he was given a shot of cortisone in the left knee after a couple of days since it was still swollen. He reported that since that time, he has had flare-ups. He clarified that in regards to the motorcycle accident, he essentially bruised the knees. He reported that when he joined the military, he passed the physical, made it through basic training and multiple runs, marches, etc. without any problem until he re-injured his knee in service. Service treatment records (STR's) include a June 1961 enlistment Report of Medical Examination that revealed a normal clinical evaluation of the lower extremities and musculoskeletal system. On the June 1961 enlistment Report of Medical History, the Veteran indicated that he did not have any swollen or painful joints, cramps ion his legs, "trick" or locked knee, or neuritis. As the Veteran was accepted and enrolled for service and the entrance exam did not reveal any diagnosis or symptoms of a left knee disorder, the presumption of soundness, therefore, applies. A Veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C.A. § 1111 (2012). In order to rebut this presumption, clear and unmistakable evidence would be needed that the Veteran's back condition pre-existed service and was not aggravated therein. Id; See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1137, 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §§ 1137, 1153; 38 C.F.R. §§ 3.304, 3.306(b) (2012). Here, the Veteran reported on several occasions that he injured his knees in a motorcycle accident prior to service, however, he did not seek medical treatment at that time. Also, STR's dated in September 1963 noted that the Veteran injured both knees three years ago. A September 1963 record from the dispensary reported in further detail that the Veteran was in a motorcycle accident about three years ago. He had swelling and disability for two weeks but did not see a doctor. Since then, the knee has locked about three or four times and has given away about five times. A subsequent consultation report from the Orthopedic Clinic noted that the Veteran did not seek medical attention from his accident and that there was no swelling at any time. The record also noted that in 1960, he was kicked in the lateral side of the left knee and noticed an increased in the pain medially on the lateral side. Since then, he noted that there was pain with bumping of the lateral side of the knee and that the left knee seemed to give way. The examiner noted that there was no true history of locking. An April 1966 Orthopedic Clinic treatment record and an April 1966 hospital record noted that the Veteran began to have trouble with his left knee after an injury six years ago, when he fell riding a motorcycle. Since that time, he has had intermittent episodes of pain after minimal trauma. The Veteran is competent to report a history of a motorcycle accident and left knee pain, locking, and giving way prior to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, a Veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. Brown, 11 Vet. App. 345 (1998); see also Gahman v. West, 13 Vet. App. 148 (1999). On December 2009 VA examination, the examiner reviewed the claims file and noted that the Veteran's STR's showed that he was involved in motorcycle accident prior to entrance to active service and sustained an injury to his left knee. The Board has considered the STR's, the December 2009 VA examiners notes, and the Veteran's reports, which provide competent evidence of that a left knee disorder pre-existed service and may rise to the level of clear and unmistakable evidence that the Veteran had a pre-existing left knee disorder; however, the evidence is not clear and unmistakable that there was no aggravation. The September 1963 STR's while noting that the Veteran injured both knees three years ago as a result of a motor cycle accident, also reported that he reinjured his left knee on September 20, 1963 when he slipped and fell. The record noted that his left knee now was painful, occasionally locked, and sometimes slipped, which was causing him to fall. On examination, there was evidence of a torn left medial meniscus. A subsequent consultation report from the Orthopedic Clinic noted that in 1960, he was kicked in the lateral side of the left knee and noticed an increased in the pain medially on the lateral side. The record also noted that there was no true locking and at no time has the knee had an effusion and therefore, no aspirations. However, on the current examination there was a click at 10 degrees full extension. The initial impression was internal derangement of the left knee with possible meniscus tear. He was prescribed physical therapy. An October 1963 record noted that after a week of physical therapy to the left knee, pain disappeared to the lateral side of the knee. X-rays were essentially normal, although there was a bi-partite patella on the left side. The Veteran required no further treatment at this time. An April 1966 Orthopedic Clinic treatment record also referred to the motorcycle accident six years ago, however, the record specifically reported that the Veteran re-injured his left knee two and a half years ago at which time surgery was recommended, but was deferred. The record noted that last night, his knee gave out on him and was currently sore and occasionally locked. On examination, there was some tenderness to palpation over the patella. No real meniscus tear could be demonstrated. The impression was that he might have chondromalacia and even loose bodies, although a meniscus tear could not be demonstrated he might have this too. Physical therapy was prescribed and he was given hydrocortisone and Xylocaine injections. An April 1966 hospital record noted that the Veteran began to have trouble with his left knee after an injury six years ago, when he fell riding a motorcycle. The record also noted, however, that the week prior to admission, when stepping down from a ladder aboard a ship, his knee supposedly gave-way. Since that time he has had pain in the knee which had failed to respond to outpatient treatment. On admission he was diagnosed with left knee strain. On examination, there was minimal tenderness over the lateral aspect of the knee. X-rays of the left knee revealed no apparent abnormality. After examination, it was felt that he had sustained a moderately-severe strain of the lateral collateral ligaments and he was started on a course of physical therapy. In May and June 1968, the Veteran sought treatment on multiple occasions regarding left knee pain. He was prescribed an ace wrap and medication. Despite the prior knee injury, the Veteran's STR's show that he had been on active duty for well over two years before he first reported any left knee pain that was reported as being the result of him re-injuring his left knee on September 20, 1963. At that time, there was objective evidence of clicking with extension, X-ray evidence of bi-partite patella, and a diagnosis of internal derangement of the left knee. In April 1966, the Veteran was hospitalized after his left knee failed to respond to treatment from falling off of a ladder on a ship. There was objective evidence of tenderness to palpation over the patella and a moderately-severe strain of the lateral collateral ligaments. He received hydrocortisone and Xylocaine injections. From May to June 1968, he sought periodic treatment for left knee pain. On December 2009 VA examination report, the examiner reported that the Veteran's service treatment records showed that he sustained an additional injury to his left knee while on active service. Hence, the evidence is not clear and unmistakable that a left knee disability was not aggravated by service. The Veteran has repeatedly stated that he re-injured his left knee in service and has experienced pain and flare-ups since he fell off of the ladder in-service. The Veteran is competent to report in-service left knee injuries and his reports are consistent with the circumstances, conditions, or hardships of his service, whether combat or not. 38 U.S.C.A. § 1154(a)-(b) (2012). The STRs also demonstrate in-service injuries and disabilities. The Board has considered the December 2009 VA examiner's opinion that it was less likely than not that the Veteran's left knee was aggravated by service beyond normal progression. However, the language "less likely as not" does not equate to "clear and unmistakable" evidence that the right knee condition was not aggravated. Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)); see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Vanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring inpart and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.'"). Hence, the presumption of aggravation is not rebutted. On April 2007 VA examination, X-rays revealed osteopenia of the left knee and the Veteran was diagnosed with degenerative joint disease of the left knee. VA treatment records include a May 2007 MRI of the left knee showed the presence of suprapatellar joint effusion. On December 2009 VA examination, the examiner noted that the Veteran had arthroscopic surgery on his left knee in 1984 at the North East Memorial Hospital. He used a cane and occasionally had swelling. He described his knee giving away on him, and locking, and clicking. He denied any re-injuries to his knee after service. On examination, there was mild medial joint line tenderness with negative McMurray's test. There was crepitus with range of motion. X-rays revealed tricompartment degenerative changes. Overall, the STR's, post-service opinions, and the Veteran's statements provide credible evidence of in-service aggravation of right knee disability. The Veteran is competent to report in-service left knee pain and flare-ups following an in-service injury as well as a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. His reports of pain since his left knee injury in service are generally consistent with the evidence of record and there is nothing to explicitly contradict them. 38 C.F.R. § 3.303(b). Therefore, based upon the foregoing and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed left knee disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Service connection for a left knee disability, is granted. REMAND The Veteran contends that during his first tour of duty he worked in the engine room, which was very oily, hot, sweaty, and greasy and the sweat and dirt would get in his ears and clog them. He reported that he had no way of unclogging his ears because showers were limited to approximately once every 30 days. He reported that he would have to shout while working in the engine room because of the noise of the generator and engines. He was not provided with hearing protection. He also reported that during the first dive that they made in the submarine, he didn't know how to equalize his ears. He also reported that he would be deep in the water for long periods of time and that he always had headaches and earaches while aboard. He first noticed tinnitus during his first tour duty on the submarine around March 1964. Prior to working on submarines, he worked in the ship fitter shop where there was always banging metal, welding, and generators running. It was a noisy atmosphere. The Board notes that the only audiological testing accomplished during the appellant's period of service was a whispered/spoken voice test performed on entrance and separation. Whispered/spoken voice tests cannot be considered as reliable evidence that hearing was or was not present. Whispered/spoken voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure. See VBA Training Letter 211D (10-02) (March 18, 2010). The Veteran's spouse reported that she's known the Veteran since 1971 and that people around him witnessed that he was unable to hear and would have to speak up when talking to the Veteran. In order to determined whether or not the Veteran's current hearing loss and tinnitus were related to his reported in-service noise exposure and clogged ears, in March 2013, the Board remanded the claim, in part, to obtain the December 2009 VA audiological examination that had been missing from the claims file. A review of the December 2009 VA examination report reveals that the examiner reported that no opinion could be provided at this time because there was no claims file available for review. The examiner then requested to have the claims file sent for review; however, it does not appear that the examiner was ever provided with the claims file. In light of the absence of an opinion regarding the nature and etiology of the Veteran's bilateral hearing loss and tinnitus, the VA examination is inadequate. Therefore a new VA examination is indicated. The Board notes that once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file to the December 2009 VA examiner, if available. If not, send the file to another suitably qualified VA examiner. The examiner should review the physical and Virtual VA claims file and a copy of this remand. All pertinent symptomatology related to hearing loss and tinnitus must be reported in detail. Following a review of the claims file, to include service and post-service medical records, the examiner should address the following with regard to any diagnosed hearing loss (left or right ear) and tinnitus: whether it is at least as likely as not (i.e., a 50 percent probability or more) that any such disability is related to service, to include any in-service noise exposure; clogging related to dirt, sweat, and grease while working in the engine room, and/or ear pressure and aches while diving deep and for prolonged periods in a submarine. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (If a reason for rejecting the appellant's statements is that his separation examination showed normal hearing acuity, the examiner should also consider that whispered/spoken voice tests cannot be considered as reliable evidence that hearing loss was or was not present.) All opinions must be accompanied by an explanation of the bases for the opinion. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed explanation as to why this is so must be provided. 2. The RO/AMC must ensure that the examination request has been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. The RO/AMC should ensure that the examination report complies with the instructions of this remand. Thereafter, the claims for service connection should be re-adjudicated. If a benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs