Citation Nr: 1328403 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-02 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and Ms. W. ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1976 to May 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in January 2008 and in April 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2010 and October 2012, the Board remanded the claims currently on appeal for further development. While on appeal in a rating decision in January 2013, the RO granted service connection for left knee disability. The claim of service connection for a low back disability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss was not affirmatively shown to have been present during military service, is unrelated to an injury, disease or event during service and is not caused by or made worse by medication for the service-connected varicose veins. 2. Tinnitus was not affirmatively shown to have been present during military service, is unrelated to an injury, disease or event during service and is not caused by or made worse by medication for the service-connected varicose veins. 3. A right knee disability was not affirmatively shown to have been present during military service, is unrelated to an injury, disease or event during service and is not caused by or made worse by the service-connected varicose veins or left knee disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability on a direct basis and as secondary to service-connected varicose veins have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.385 (2012). 2. The criteria for service connection for tinnitus on a direct basis and as secondary to service-connected varicose veins have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 3. The criteria for service connection for a right knee disability on a direct basis and as secondary to service- connected varicose veins or left knee disabilities have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will 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. Also, the VCAA 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, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided a pre-adjudication VCAA notice by letters dated in May 2007 and February 2008. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, private medical records and records from the Social Security Administration. The Veteran was afforded VA examinations in July 2008, January 2011, December 2012 and April 2013. As the reports of the VA examinations are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examinations reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service- connected disability. 38 C.F.R. § 3.310(a). Service connection for certain chronic disorders, such as arthritis and sensorineural hearing loss, may be established based on a legal "presumption" by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1137; 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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 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 (1993). A claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. Hensley, 5 Vet. App. at 159-60. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence and Analysis Hearing Loss and Tinnitus The Veteran asserts that his bilateral hearing loss and tinnitus began during service as a result of noise exposure from driving 5 and 10 ton trucks and firing howitzers, guns, and grenade launchers. The service treatment records show that on the enlistment audiogram in May 1976, the decibel threshold at 500 Hz was 25 in the right ear and 25 in the left ear at 4000 Hz. In July 1977, the decibel threshold at 500 Hz was 25 in the right ear. The decibel thresholds for the remainder of the audiometric findings, including on separation examination in 1980, were 20 decibels or below at the tested frequencies. On VA examination in July 2008, the VA examiner expressed the opinion that it was less likely as not that the current bilateral hearing loss and tinnitus were related to service, because audiometric results on enlistment, during service, and on separation examination were normal and tinnitus was not observed by the Veteran until after service. The Veteran was afforded another VA examination in December 2012, which considered the Board's request for another opinion and the facts specified by the Board in the remand directive. The Veteran was diagnosed as having sensorineural hearing loss and tinnitus. The VA examiner expressed the opinion that bilateral hearing loss was not at least as likely as not caused or a result of an event in service and considered the Veteran's inservice hearing screenings dated May 1976, July 1977, March 1978, April 1979, and February 1980. The VA examiner also expressed the opinion that tinnitus was a symptom of hearing loss and it was less likely than not caused by or a result of military noise exposure. The examiner considered the Veteran's differing statements that he noticed his tinnitus in either 1982 or 1983 and that he noticed his tinnitus about 15 years ago, which would be 17 years following service, and concluded that both accounts placed the onset of tinnitus after separation. The VA examiner provided definitive opinions that the Veteran's current bilateral hearing loss and tinnitus were not related to active service. The examiner provided rationale and cited to specific evidence in the file as support for the opinion. The opinion was based upon review of the claim file and a physical examination, and is found to be persuasive. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The evidence also does not show that the Veteran was diagnosed with bilateral hearing loss within one year following his separation from service. As such, service connection on a presumptive basis is not warranted. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.307, 3.309. In addition, there is no competent medical evidence of record showing that the Veteran's bilateral hearing loss and tinnitus had their onset during active service or is related to any in-service disease or injury. Private and VA medical treatment records regarding bilateral hearing loss and tinnitus make no mention of any link between the conditions and service. The Veteran's service treatment records do show some hearing impairment during service; however, there were no significant threshold shifts recorded and the hearing impairment did not amount to hearing loss under 38 C.F.R. § 3.385. To the extent the Veteran asserts that bilateral hearing loss and tinnitus are associated with service, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Whether there is a causal relationship or nexus between bilateral hearing loss and tinnitus and service is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation as causation falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render an opinion on a causal relationship or nexus between bilateral hearing loss and tinnitus and service. King v. Shinseki, 700 F.3d 1339, 1345 (2012) (the Board may find that lay evidence to establish medical causation is not competent evidence). For this reason, the Veteran's lay evidence is not competent evidence of a causal relationship or nexus between bilateral hearing loss and tinnitus and service. Since the Veteran's lay evidence is not competent evidence, the Veteran's lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to the claims. As the Veteran's statements are not competent evidence, the Board need not address credibility. The Board has also considered whether bilateral hearing loss and tinnitus were caused by medication for the Veteran's service-connected varicose veins. In April 2013, a VA examiner expressed the opinion that the Veteran's bilateral hearing loss was not caused or aggravated by medications for his service-connected varicose veins. The VA examiner explained that the Veteran used NSAIDs and methocarbamol for discomfort due to varicose veins as well as other orthopedic problems and although there is evidence to suggest an increase in the occurrence of sensorineural hearing loss in people who use NSAIDs, there was no medical evidence of record to support a contention that the Veteran's hearing loss or tinnitus was caused or aggravated by medication. The VA examiner also stated that there was no evidence to support a contention that methocarbamol caused tinnitus or hearing loss and cited to www.drugs.com/sfx/methocarbamol- side-effects.html. As the opinion was based on a review of the Veteran's history and provided a rationale for the conclusions reached in the opinion, the Board finds that the opinion persuasive, which opposes, rather than supports, the question of whether bilateral hearing loss and tinnitus were caused by or aggravated by medication for service-connected varicose veins. As the medical evidence opposes, rather than supports, the claims, and as there is no medical evidence in favor of the claims, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Right Knee The Veteran asserts that his right knee disability began during service due to physical strain of running every day, driving 5 to 10 ton trucks, and loading and unloading the trucks. He also asserted that his right knee disability is related to his service-connected varicose veins. Service treatment records are silent for any complaints or findings related to the right knee. Post-service treatment records are likewise silent for any complaints or findings related to the right knee until the VA examination in January 2011, about 21 years following service. The time lapse between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. There is also no competent evidence showing that the Veteran's current right knee disability was related to active service. Private and VA medical treatment records make no mention of any link between this condition and service. The Veteran was afforded a VA examination in January 2011. The Veteran was diagnosed as having degenerative joint disease. The examiner stated that he was not able to identify objective medical evidence of injury or trauma to the knees during active duty. The VA examiner found that the medical evidence did not support an adequate nexus between the Veteran's current right knee disability and active service. The VA examiner provided rationale and the opinion was based upon review of the claim file and a physical examination, and is found to be persuasive. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The evidence also does not show that the Veteran was diagnosed with degenerative joint disease within one year following his separation from service. As such, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.307, 3.309. The Board has also considered whether the right knee disability was caused by service-connected varicose veins and left knee disabilities. During a December 2012 VA examination, the Veteran stated that he favors his right knee because of his problems with varicosities in the left leg and quadriceps tear of the left knee. The Veteran was diagnosed as having a chronic right knee strain. The VA examiner stated that a search of medical literature revealed nothing to support the contention that the right knee disability was caused by or aggravated by service-connected varicose veins. In April 2013 on VA examination, the VA examiner expressed the opinion that the right knee disability was less likely as not caused or aggravated by the service-connected left knee disability. The VA examiner explained that gait alterations do not increase physical forces on the joints to the point it causes degenerative joint disease. As the opinions were based on a review of the Veteran's history and provided rationale for the conclusions reached in the opinions, the Board finds that the opinions are persuasive evidence, which opposes, rather than supports, the claim on the question of whether the right knee disability was caused by or aggravated by service-connected varicose veins and left knee disabilities. To the extent the Veteran and his brother assert that the Veteran's right knee disability is associated with service or the service-connected disabilities, the Veteran and his brother as lay persons are competent to offer an opinion on a simple medical condition, whether there is a causal relationship or nexus between a right knee disability and service or his service-connected disabilities is not a question that can be competently answered by the Veteran or his brother as a lay person based on mere personal observation as causation falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. And no factual foundation has been established to show that the Veteran and his brother are otherwise qualified through specialized education, training, or experience to render opinions on a causal relationship or nexus between a right knee disability and service or the service-connected disabilities. See King, 700 F.3d at 1345 (the Board may find that lay evidence to establish medical causation is not competent evidence). For this reason, the lay evidence is not competent evidence of a causal relationship or nexus between a right knee disability and service or the service-connected disabilities. Since the lay evidence is not competent evidence, the Veteran's and his brother's lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the Veteran's and his brother's statements are not competent evidence, the Board need not address credibility. As the medical evidence opposes, rather than supports, the claim, and as there is no medical evidence in favor of the claim, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. Service connection for a right knee disability is denied. REMAND In January 2013, the RO granted service connection for left knee disability. On VA examination in April 2013, the VA examiner expressed opinion that there was no medical evidence of record to support a contention that the Veteran's low back conditions were caused or aggravated by the service-connected left knee disability. As the opinion is stated as a conclusion without rationale, record is insufficient to decide the applicable theories of service connection, and further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice on the claim for secondary service connection. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that the current degenerative disc disease or degenerative joint disease of the lumbar spine is caused by or aggravated by the service-connected left knee? In this context the term "aggravation" means a permanent increase in the disability of the lumbar spine, that is, a permanent or irreversible worsening of beyond the natural or expected clinical course of the disability as contrasted to a temporary worsening of symptoms. The Veteran's file should be made available to the examiner for review. 3. After the above development has been completed, adjudicate the claim of service connection for the low back on a secondary basis. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs