Citation Nr: 1324328 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 13-00 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a bilateral ankle disability. 3. Entitlement to service connection for bilateral knee degenerative joint disease. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1965 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied service connection for right ear hearing loss, a bilateral ankle disorder, and bilateral knee degenerative joint disease. FINDINGS OF FACT 1. The competent and probative evidence of record shows that the Veteran does not have a current bilateral ankle disability related to any event or injury in service 2. The competent and probative evidence of record shows that the Veteran's bilateral knee disability is not related to any event or injury in service, and that arthritis in the knees was not manifested to a compensable degree within one year following service discharge. 3. The competent and probative evidence of record shows that the Veteran's right ear hearing loss is not related to any event or injury in service, and that sensorineural hearing loss was not manifested to a compensable degree within one year following service discharge. CONCLUSIONS OF LAW 1. A bilateral ankle disability was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). 2. A bilateral knee disability was not incurred in, or aggravated by, active military service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 3. Hearing loss was not incurred in, or aggravated by, active military service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 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, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in July 2010 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above, prior to the initial adjudication of the claim in February 2011. The letter also provided the Veteran with information on how VA determines and assigns effective dates. Regarding the duty to assist, the RO has obtained the Veteran's service records and a private treatment record. The RO also has provided him with VA examinations in September 2010 and a supplemental opinion in November 2010. All relevant records have been added to the file and considered in the below determination. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service 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); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303. Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis, and organic diseases of the nervous system, which includes sensorineural hearing loss, are listed as chronic conditions under 38 C.F.R. § 3.309(a). Therefore, any arthritis of the knees or ankles, or sensorineural hearing loss for the Veteran can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, arthritis of the knees or ankles and sensorineural hearing loss may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). A. Bilateral Knees and Ankles The Veteran seeks service connection for disabilities of the bilateral knees and ankles, which he relates to jumping from trucks that were high off the ground with full gear and ill-fitting combat boots in service. His DD Form-214 shows that he was a Heavy Vehicle Driver in the Army; thus it is reasonable to deduce that he would have had to jump out of trucks with his gear pack. The service treatment records also show complaints of knee and ankle pain in service on various occasions in May 1965. Specifically it was noted that the right knee, ankles, and feet were tender. On the right knee, the medial distal collateral ligament was quite tender. The ankles had swelling and redness and it was noted that the left ankle had mild tenderness. X-rays were taken of the right knee and left ankle, which showed no abnormalities. In February 1968 the Veteran complained of pain in joints of the feet and hand in cold weather. On his Report of Medical History at discharge from service in February 1968 the Veteran reported swollen or painful joints. The physician noted that the pain was in his right hand and was cold intolerance. Clinical evaluation of the lower extremities and feet was normal at separation from service. After service, there is no record of treatment for the knees or ankles until the Veteran underwent VA examination in September 2010. The Veteran stated on examination that he developed pain in his bilateral ankles and knees in about 1965 during basic training at Fort Leonard Wood and that he would frequently wear full gear and have to jump off the back of a truck, five to six feet off of the ground. He stated that he had medical evaluation for his ankles and knees and was given light duty for swollen ankles. The examiner noted the documentation in the service treatment records on three occasions in May 1965 complaining of swelling and redness in both ankles, noting medial left ankle tenderness, right knee ligament soreness and pain in the knee and bilateral ankles and feet with tender medial collateral ligament of the right knee. It was further noted that x-rays of the right knee and left ankle in May 1965 were normal. There also was a report of swollen joints in February 1968. Post-service there was no medical evaluation or treatment but the Veteran stated that his symptoms had gradually worsened. He noted that he had been wearing arch supports for the last one to two years. Current symptoms were knee and ankle pain, with ankles worse, and left knee worse than right knee. The pain was intermittent and worse with prolonged standing. There was no swelling. He had occasional "clunking" noise and sense of tightness. He described pain more in the posterior on the Achilles tendon and along the medial ankle and foot, which was described as burning and stiffness in the bilateral ankles, left greater than right. On objective evaluation range of motion in the knees was normal with no objective evidence of pain or painful motion. Range of motion in the ankle was slightly limited in plantar flexion on both sides (to 35 and 40 degrees, left and right, respectively, rather than to the full 45 degrees of plantar flexion). It also was noted that eversion and inversion were mildly decreased on the left compared to the right. Strength testing was normal in the ankles. Additional testing was normal with no evidence of abnormal weightbearing and a normal gait. There were no additional functional limitations of the knees or ankles including loss of motion, during flare-ups, or secondary to repetitive use of the joint times three repetitions, painful motion, weakness, excessive fatigability, or lack of endurance or incoordination. X-rays of the ankles were unremarkable. X-rays of the knees showed minimal degenerative change with chondrocalcinosis. In providing a diagnosis, the examiner noted that there was no diagnosis of a bilateral ankle condition because, although there were symptoms, there was no current clinical objective evidence of a diagnosable disease or pathology. It was noted that minor variations in range of motion were normal from individual to individual. The range of motion that was "normal" in the template was an average. The examiner further determined that in the absence of other objective findings, minor loss of motion was nondiagnostic. With respect to the knees, the diagnosis was minimal degenerative joint disease of the bilateral knees. The examiner found that the degenerative joint disease of the knees was not caused by or the result of military service. The rationale was that although there was documentation in the service treatment records of right knee symptoms there was no medical record documentation or evaluation or treatment of the knees for more than 40 years since military discharge. In addition, bilateral symmetrical joint conditions were most likely consistent with normal age-related degenerative changes. There are no other medical opinions of record addressing the etiology of the Veteran's knee and ankle disorders. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran does not have a current bilateral knee or ankle disability related to any event or injury in service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between any current knee or ankle disorder and his service are the Veteran's assertions. The Board acknowledges that the Veteran is competent to report that he has continued to experience symptoms in his ankles and knees since his military service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Veteran also can attest to factual matters of which he has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran's personnel records and service treatment records are consistent with his reports that he suffered injury to his knees and ankles during service from jumping off of trucks while wearing full gear. Therefore, the Board has no reason to doubt his credibility in this regard. However, the Veteran does not contend, nor does the medical evidence demonstrate any treatment for the ankles or knees in the intervening 42 years since his discharge from service in 1968 and his VA examination in 2010 when mild degenerative changes in the knees were shown. As the first finding of arthritis in the knees was not until many years after discharge, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. Also, the Veteran has submitted no competent medical evidence or opinion to corroborate his contentions that he has had symptoms in his ankles and knees since service, which are related to his military service. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinions are insufficient to provide the requisite nexus between any ankle and knee disabilities and service because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any ankle or knee disabilities are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. The Board finds the VA examination report in September 2010 to be more probative as to the etiology of any current ankle or knee disorder. The examiner reviewed the claims file and examined the Veteran and found that his current knee disabilities were not related to service, based on the lack of treatment for the past 40 years and the fact that the knee arthritis was more consistent with aging. While continuous symptoms, rather than continuous treatment, is the relevant issue in determining the merits of a service connection claim, as previously discussed, the Veteran is not competent to relate his complaints pain in the knees and ankles to an underlying cause of the symptoms, such as arthritis. Therefore, in this instance, the lack of documented complaint of pain in the knees until 2010 is an acceptable premise to be relied on by the VA physician in determining that the Veteran's bilateral knee disabilities are not related to his military service. The examiner in this case also found that the Veteran's knee arthritis was more consistent with aging. In addition the examiner found that there were no diagnosed disabilities in the ankles. As the Veteran reviewed the claims file and the Veteran and provided an opinion with a well-reasoned rationale, the Board assigns high probative value to this opinion. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008). As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has a knee or ankle disability that is related to any in-service disease, event, or injury. Accordingly, the Board finds that the criteria for service connection for bilateral knee and ankle disabilities are not met and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). B. Right Ear Hearing Loss The Veteran seeks service connection for right ear hearing loss, which he relates to exposure to acoustic trauma in service, specifically from operating "830 scrapers." As noted above, the Veteran's MOS in service was Heavy Vehicle Driver. The RO also granted service connection for left ear hearing loss and tinnitus related to acoustic trauma in service. Thus exposure to acoustic trauma is conceded. The determinative issue is whether the Veteran has right ear hearing loss related to the exposure to acoustic trauma in service. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Organization for Standardization (ISO) units to facilitate comparison of results. VA used ASA units prior to July 1966, but in July 1966 VA adopted ISO units. The service treatment records show that the Veteran underwent hearing testing at enlistment into service in March 1965. As the audiogram was performed prior to November 1967, the results must be converted from ASA to ISO units. The audiogram showed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 10 10 - 5 The Veteran also noted that he had been hospitalized at age 12 for an earache. However, clinical evaluation of the ears was normal. Based on the audiogram (converted to ISO units) it would appear that the Veteran had a hearing loss disability in the right ear at entry into service. However, there was no diagnosis of a right ear hearing loss shown, nor was it mentioned in any of the treatment records. Therefore, it is not clear whether the audiogram at entry was in fact provided in ASA units. At discharge from service, a February 1968 audiogram showed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 5 The Veteran denied any ear trouble or history of wearing hearing aids. After service, there is no record of treatment for hearing loss until a private audiogram that was performed in May 2010. The results of this audiogram are unclear, however. A few months later, the Veteran underwent VA examination in September 2010. The Veteran reported military noise exposure as a heavy equipment operator during basic training. He also reported occupational noise exposure as a welder and recreational noise exposure as a hunter, but noted that hearing protection was worn. On the authorized VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 45 55 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The examiner determined that the data was most consistent with bilateral sensorineural hearing loss. The examiner noted that no medical records were provided for review so she could not resolve the hearing impairment issue without resort to mere speculation. A supplemental opinion was provided in November 2010. It was noted that the Veteran's service hearing records were located and reviewed. The entrance audiological data were converted from ASA to ISO/ANSI standards as required for all audiograms completed before November 1, 1967. The examiner noted that there was no significant change in hearing during military service for the right ear. As a result, it was the audiologist's opinion that the Veteran's right ear hearing impairment was less likely as not (less than 50/50 probability) caused by or a result of military noise exposure for the right ear. In addressing this claim, initially, it is determined that notwithstanding the audiogram findings (in ISO units) at entry into service, the Veteran is considered sound at entry into service with respect to his right ear hearing acuity. Even though after converting to ISO units there appears to be a right ear hearing loss at 500Hz, the examining physician did not indicate that there was any hearing loss shown. Moreover, a finding of hearing loss at entry would not be consistent with the audiogram performed at discharge from service, which was completely normal. Therefore, it is plausible that the audiogram provided at entry was in fact provided in ISO units already and did not need to be converted. Regardless, the Board will presume that the Veteran did not have a pre-existing right ear hearing loss disability at entry into service and will thus concentrate on the issue of whether there was hearing loss incurred in service (rather than addressing the issue of aggravation of a pre-existing disability). The Veteran is not prejudiced by the Board's presumption, because if he was shown as having a hearing loss disability noted at entry into service, the burden would be on him to establish that his hearing loss was aggravated during service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's right ear hearing loss is not related to any event in service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between any current right ear hearing loss and his military service are the Veteran's assertions. The Board acknowledges that the Veteran is competent to report that he has continued to experience hearing loss since his service, although in this case there is no specific allegation of right ear hearing loss since service. See Barr, 21 Vet. App. at 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau, 492 F.3d 1372; Davidson, 581 F.3d 1313. The Veteran is also competent to report that he was exposed to acoustic trauma in service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno, 6 Vet. App. 465. It is within the Veteran's realm of personal knowledge whether he had exposure to loud noises in service, and has continued to experience hearing loss since that time. As noted, the Veteran's exposure to acoustic trauma also has been conceded. However, the Veteran's opinion that his right ear hearing loss is due to in-service noise exposure is insufficient to provide the requisite nexus between an in-service event or injury and any current disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any hearing loss disability are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. To this extent, the medical opinion described below outweighs any opinion provided by the Veteran. The Board also finds it significant that a VA audiologist provided an opinion in November 2010 that it was less likely as not that the Veteran's current right ear hearing loss was related to noise exposure on active duty. The VA physician noted during the previous examination in September 2010 that the Veteran had a history of military noise exposure as a heavy equipment operator. Thus, the physician adequately took into account the Veteran's lay statements that the Board had deemed both competent and credible regarding the claimed in-service noise exposure. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); McClendon, 20 Vet. App. at 81. The physician accurately pointed out that notwithstanding the Veteran's lay assertions of experiencing acoustic trauma in service, there was no significant shift in auditory thresholds in the right ear during the Veteran's military service. The VA physician's opinion was fully informed, fully articulated, and included a reasoned analysis. Thus, the physician's opinion is entitled to a high probative value. See Nieves-Rodriguez, 22 Vet. App. at 303-04. Additionally, as the Veteran's first finding of right hearing loss was in 2010, approximately 42 years after discharge from service, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's current right ear hearing loss had its onset during active service or is related to any in-service disease, event, or injury. See 38 U.S.C.A. § 1110. Accordingly, the Board finds that the criteria for service connection for right ear hearing loss are not met and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). (Continued on the next page) ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for a bilateral ankle disability is denied. Entitlement to service connection for bilateral knee degenerative joint disease is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs