Citation Nr: 1329361	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  07-06 552A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio



THE ISSUES

1.  Entitlement to an initial evaluation in excess of 50 
percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial compensable evaluation for 
bilateral hearing loss.

3.  Entitlement to service connection for a bilateral knee 
disorder.

4.  Entitlement to service connection for eczema (claimed as 
a skin condition), to include as due to herbicide exposure.



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1963 to January 
1967.  He served in the Republic of Vietnam from April 1965 
to December 1965.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Cleveland, 
Ohio.

In an April 2005 rating decision, the RO denied entitlement 
to service connection for the residuals of a bilateral knee 
injury and eczema.  In another April 2005 rating decision, 
the RO granted service connection for PTSD and assigned a30 
percent evaluation effective from January 26, 2004.  The RO 
later increased that evaluation to 50 percent as of January 
26, 2004.  Applicable law mandates that, when a veteran 
seeks an increased evaluation, it will generally be presumed 
that the maximum benefit allowed by law and regulation is 
sought, and it follows that such a claim remains in 
controversy where less than the maximum benefit available is 
awarded. See AB v. Brown, 6 Vet. App. 35 (1993).

In a February 2007 rating decision, the RO granted service 
connection for bilateral hearing loss and assigned a 
noncompensable evaluation effective from January 26, 2004.  

The Board notes that the Veteran requested a hearing in 
August 2009 and May 2010.  In May 2013, he was notified that 
he was scheduled to appear at a hearing at the RO in June 
2013.  However, in response to the notification, he 
indicated that he was unable to attend the scheduled hearing 
and he wanted to withdraw his hearing request.  Therefore, 
the hearing request is considered withdrawn, and no further 
action is necessary.  See 38 C.F.R. § 20.704 (2012).

In addition to the paper claims file, there are Virtual VA 
and Veterans Benefits Management System (VBMS) paperless 
files associated with the Veteran's case.  A review of the 
documents in the Virtual VA paperless claims file reveals VA 
treatment records that are relevant to the issues on appeal.  
The RO considered those additional treatment records and 
readjudicated the claims in a February 2013 supplemental 
statement of the case (SSOC).  

Additionally, the issues of entitlement to evaluations in 
excess of 20 percent for degenerative joint disease of the 
lumbar spine and in excess of 10 percent for tinnitus; 
entitlement to service connection for melanoma, to include 
as secondary to herbicide exposure; and entitlement to a 
total evaluation based upon individual unemployability due 
to service-connected disabilities (TDIU) have been raised by 
the record, but have not been adjudicated by the Agency of 
Original Jurisdiction (AOJ).  Therefore, the Board does not 
have jurisdiction over these issues, and they are referred 
to the AOJ for appropriate action.  

The issues of entitlement to service connection for eczema 
and to a higher initial evaluation for PTSD 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.  During the pendency of the appeal, the Veteran 
manifested, at worst, Level I hearing in his right ear and 
Level V hearing in his left ear. 

2.  A bilateral knee disorder did not manifest during 
service or within one year thereafter and is not causally or 
etiologically related to service.



CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for 
bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.85, 4.86, 
Diagnostic Code 6100 (2012). 

2.  The criteria for entitlement to service connection for a 
bilateral knee disorder have not been met.  38 U.S.C.A. §§ 
1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 
C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for 
benefits, VA must notify the claimant of what information or 
evidence is needed in order to substantiate the claim and it 
must assist the claimant by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  The notice required must be provided to 
the claimant before the initial unfavorable decision on a 
claim for VA benefits, and it must (1) inform the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to 
provide; and, (3) inform the claimant about the information 
and evidence the claimant is expected to provide.  38 
U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United 
States Court of Appeals for Veterans Claims (Court) held 
that, upon receipt of an application for a service 
connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 
3.159(b) require VA to review the information and the 
evidence presented with the claim and to provide the 
claimant with notice of what information and evidence not 
previously provided, if any, will assist in substantiating, 
or is necessary to substantiate, each of the five elements 
of the claim, including notice of what is required to 
establish service connection and that a disability rating 
and an effective date for the award of benefits will be 
assigned if service connection is awarded. 

With regard to claims for increased disability ratings for 
service-connected conditions, the law requires VA to notify 
the claimant that, to substantiate a claim, the claimant 
must provide, or ask VA to obtain, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability.  38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and 
remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 
(Fed. Cir. 2009).  The claimant must be notified that, 
should an increase in disability be found, a disability 
rating will be determined by applying relevant Diagnostic 
Codes, which typically provide for a range in severity of a 
particular disability from noncompensable to as much as 100 
percent (depending on the disability involved), based on the 
nature of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration.  
Finally, the notice must provide examples of the types of 
medical and lay evidence that the Veteran may submit (or ask 
the VA to obtain) that are relevant to establishing her or 
his entitlement to increased compensation.  However, the 
notice required by section 5103(a) need not be specific to 
the particular Veteran's circumstances; that is, VA need not 
notify a Veteran of alternative diagnostic codes that may be 
considered or notify of any need for evidence demonstrating 
the effect that the worsening of the disability has on the 
particular Veteran's daily life.  Vazquez-Flores v. 
Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must 
be provided prior to an initial unfavorable decision 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). 

In this case, the Veteran is challenging, in part, the 
initial evaluation assigned following the grant of service 
connection for bilateral hearing loss.  In Dingess, the 
Court held that, in cases where service connection has been 
granted and an initial disability rating and effective date 
have been assigned, the typical service-connection claim has 
been more than substantiated, it has been proven, thereby 
rendering section 5103(a) notice no longer required because 
the purpose that the notice is intended to serve has been 
fulfilled.  Id. at 490-91.  See also VAOPGCPREC 8- 2003 
(December 22, 2003).  Thus, VA's duty to notify has been 
satisfied with respect to the issue of entitlement to a 
higher initial evaluation for bilateral hearing loss. 

With respect to the claim for service connection for a 
bilateral knee disorder, the RO provided the Veteran with a 
notification letter in August 2004, prior to the initial 
decision on the claim in April 2005.  Therefore, the timing 
requirement of the notice as set forth in Pelegrini has been 
met and to decide the appeal would not be prejudicial to the 
claimant.

Moreover, the requirements with respect to the content of 
the notice were met in this case.  The August 2004 letter 
informed the Veteran of the information and evidence needed 
to substantiate his claim for service connection and 
notified him of the division of responsibilities in 
obtaining such evidence.  

The Veteran was provided an explanation concerning how a 
disability rating is determined for a service-connected 
disorder and the basis for determining an effective date 
upon the grant of any benefit sought, in compliance with 
Dingess, 19 Vet. App. at 490-491, in a February 2007 
statement of the case (SOC). 

The Board notes that the February 2007 notice was not 
provided prior to the April 2005 rating decision.  Such an 
error can be effectively "cured" by providing any necessary 
notice and then readjudicating the claim in a SOC or 
supplemental statement of the case (SSOC).  Mayfield v. 
Nicholson, 499 F.3d 1317 (Fed. Cir. 2007)(Mayfield IV); 
Prickett v. Nicholson, 20 Vet. App. 370 (2006).  In this 
case, the RO provided the notice in the February 2007 SOC 
and readjudicated the claim in various SSOCs dated in July 
2009, February 2010, April 2010, March 2012, and February 
2013.  Moreover, any questions regarding disability ratings 
and effective dates are rendered moot because the claim is 
denied in the decision below.  Accordingly, the Board 
concludes that there is no prejudicial error in the timing 
of the February 2007 notice.  See Shinseki v. Sanders, 129 
S. Ct. 1696 (2009) (reversing prior case law imposing a 
presumption of prejudice on any notice deficiency). 

In addition, the duty to assist the Veteran has also been 
satisfied in this case.  The Veteran's service treatment 
records, as well as all identified and available post-
service medical records, including Social Security 
Administration (SSA) records, are in the claims file and 
were reviewed by both the RO and the Board in connection 
with the claim.  The Veteran has not identified any other 
outstanding records that are pertinent to the issue being 
decided herein. 

The duty to assist also includes providing a medical 
examination or obtaining a medical opinion when such is 
necessary to make a decision on the claim, as defined by 
law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In 
this case, the Veteran was afforded VA audiology 
examinations in October 2006, March 2010, and December 2011; 
a VA joints examination in September 2006; and a VA general 
medical examination in November 2012.  Additionally, the 
September 2006 VA examiner provided an addendum opinion in 
December 2006.  The Board finds that the medical opinions 
obtained in this case are adequate, as they are predicated 
on a full reading of the available service treatment records 
contained in the Veteran's claims file.  They consider all 
of the pertinent evidence of record and provide a complete 
rationale for the opinions stated.  Accordingly, the Board 
finds that VA's duty to assist with respect to obtaining a 
VA examination or opinion with respect to the issues on 
appeal has been met.  38 C.F.R. § 3.159(c)(4). 

Moreover, during the course of the appeal, the Compensation 
and Pension (C&P) hearing examination worksheets were 
revised to include a discussion of the effect of the 
Veteran's hearing loss disability on occupational 
functioning and daily activities.  See Revised Disability 
Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans 
Affairs Veterans, Apr. 24, 2007); see also 38 C.F.R. § 4.10 
(2012).  In Martinak v. Nicholson, 21 Vet. App. 447 (2007) 
the Court held that in addition to dictating objective test 
results, a VA audiologist must fully describe the functional 
effects caused by a hearing disability in his or her final 
report.  Martinak, 21 Vet. App. at 455. 

In this case, the December 2011 VA examiner specifically 
addressed the effect of the Veteran's hearing loss on his 
occupational functioning and daily activities.  In this 
regard, he noted that the Veteran's hearing loss had no 
significant occupational impact despite the Veteran's 
complaints that he had difficulty in all listening 
situations.  He also noted the Veteran's reports that he had 
significant difficulty hearing conversations in background 
noise, over the phone, or when he was unable to see the 
speaker's face.

Moreover, in Martinak, the Court noted that, even if an 
audiologist's description of the functional effects of the 
appellant's hearing disability was somehow defective, the 
appellant bears the burden of demonstrating any prejudice 
caused by a deficiency in the examination.  There have been 
no allegations of any prejudice caused by a deficiency in 
the examination here.

There is also no objective evidence indicating that there 
has been a material change in the severity of the Veteran's 
service-connected bilateral hearing loss disability since he 
was last examined.  38 C.F.R. § 3.327(a) (2012).  The duty 
to assist does not require that a claim be remanded solely 
because of the passage of time since an otherwise adequate 
VA examination was conducted.  VAOPGCPREC 11-95. 

VA has further assisted the Veteran and his representative 
throughout the course of this appeal by providing them with 
SOCs and various SSOCs, which informed them of the laws and 
regulations relevant to the Veteran's claims.  

The Veteran has not made the RO or the Board aware of any 
additional evidence that needs to be obtained in order to 
fairly decide the particular claims on appeal.  He has been 
given ample opportunity to present evidence and argument in 
support of his claims.  

For these reasons, the Board concludes that VA has fulfilled 
the duty to assist the Veteran in this case.  Hence, there 
is no error or issue that precludes the Board from 
addressing the merits of this appeal. 





Increased Rating

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities, found 
in 38 C.F.R., Part 4.  The rating schedule is primarily a 
guide in the evaluation of disability resulting from all 
types of diseases and injuries encountered as a result of or 
incident to military service.  The ratings are intended to 
compensate, as far as can practicably be determined, the 
average impairment of earning capacity resulting from such 
diseases and injuries and their residual conditions in 
civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  
Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
for that rating.  38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential 
to trace the medical history of the veteran.  38 C.F.R. §§ 
4.1, 4.2, 4.41.  Consideration of the whole-recorded history 
is necessary so that a rating may accurately reflect the 
elements of disability present.  38 C.F.R. § 4.2; Peyton v. 
Derwinski, 1 Vet. App. 282 (1991).  While the regulations 
require review of the recorded history of a disability by 
the adjudicator to ensure a more accurate evaluation, the 
regulations do not give past medical reports precedence over 
the current medical findings.  Where an increase in the 
disability rating is at issue, as in this case, the present 
level of the veteran's disability is the primary concern.  
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Similarly, where a veteran appeals the initial rating 
assigned for a disability when a claim for service 
connection for that disability has been granted, evidence 
contemporaneous with the claim for service connection and 
with the rating decision granting service connection would 
be most probative of the degree of disability existing at 
the time that the initial rating was assigned and should be 
the evidence "used to decide whether an [initial] rating on 
appeal was erroneous . . . ." Fenderson v. West, 12 Vet. 
App. 119, 126 (1999).  If later evidence obtained during the 
appeal period indicates that the degree of disability 
increased or decreased following the assignment of the 
initial rating, "staged" ratings may be assigned for 
separate periods of time based on facts found. Id.; see also 
Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's 
determination of the "present level" of a disability may 
result in a conclusion that the disability has undergone 
varying and distinct levels of severity throughout the 
entire time period the increased rating claim has been 
pending). 

The Veteran's bilateral hearing loss is currently assigned a 
noncompensable evaluation pursuant to 38 C.F.R. § 4.85, 
Diagnostic Code 6100. 

In evaluating service-connected hearing loss, disability 
ratings are derived by a mechanical application of the 
rating schedule to the numeric designations assigned after 
audiometric evaluations are performed.  Lindenmann v. 
Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of 
bilateral hearing loss range from noncompensable to 100 
percent based on an organic impairment of hearing acuity, as 
measured by controlled speech discrimination tests in 
conjunction with the average hearing threshold, as measured 
by puretone audiometric tests in the frequencies of 1000, 
2000, 3000 and 4000 cycles per second.  The rating schedule 
establishes 11 auditory acuity Levels designated from Level 
I for essentially normal hearing acuity through Level XI for 
profound deafness. 

VA audiological evaluations are conducted using a controlled 
speech discrimination test together with the results of 
puretone audiometry tests.  The vertical line in Table VI 
(printed in 38 C.F.R. § 4.85) represents nine categories of 
the percentage of discrimination based on a controlled 
speech discrimination test.  The horizontal columns in Table 
VI represent 9 categories of decibel loss based on the 
puretone audiometry test.  The numeric designation of 
impaired hearing (Levels I through XI) is determined for 
each ear by intersecting the vertical row appropriate for 
the percentage of discrimination and the horizontal column 
appropriate to the puretone decibel loss.  The percentage 
evaluation is found from Table VII in 38 C.F.R. § 4.85 by 
intersecting the vertical column appropriate for the numeric 
designation for the ear having the better hearing acuity and 
the horizontal row appropriate for the numeric designation 
for the level for the ear having the poorer hearing acuity.  
For example, if the better ear had a numeric designation of 
Level "V" and the poorer ear had a numeric designation of 
Level "VII" the percentage evaluation is 30 percent.  See 38 
C. F. R. § 4.85.  However, whereas here, the veteran is 
service-connected in only one ear, in order to determine the 
percentage evaluation from Table VII, the nonservice-
connected ear is assigned a numeric designation of Level "I" 
for evaluation purposes.  See 38 C.F.R. § 4.85(f).  

Regulations also provide that in cases of exceptional 
hearing loss, i.e., when the puretone threshold at each of 
the four specified frequencies (1,000, 2,000, 3,000 and 
4,000 hertz) is 55 decibels or more, the rating specialist 
will determine the Roman numeral designation for hearing 
impairment from either Table VI or Table VIa, whichever 
results in the higher numeral.  Each ear will be evaluated 
separately.  38 C.F.R. § 4.86(a).  The provisions of 38 
C.F.R. § 4.86(b)  further provide that when the puretone 
threshold is 30 decibels or less at 1,000 hertz and 70 
decibels or more at 2,000, the rating specialist will 
determine the Roman numeral designation for hearing 
impairment from either Table VI or VIa, whichever results in 
the higher numeral.  That numeral will then be evaluated to 
the next higher Roman numeral. 

Table VI
NUMERIC DESIGNATION OF HEARING IMPAIRMENT BASED ON PURETONE THRESHOLD 
AVERAGE AND SPEECH DISCRIMINATION

Puretone Threshold Average
% of 
discri
m- 
inatio
n
0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV 
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 
68-74
IV
IV
V
V
VI
VI
VII
VII
VII 
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII 
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX 
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X 
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X 
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI 

Table VIA*
NUMERIC DESIGNATION OF HEARING IMPAIRMENT BASED ONLY ON PURETONE THRESHOLD 
AVERAGE

0-41
42-
48
49-
55
56-
62
63-
69
70-
76
77-
83
84-
90
91-
97
98-
104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
*This table is for use only as specified in §§4.85 and 4.86. 


Table VII
PERCENTAGE EVALUATION FOR HEARING IMPAIRMENT
(DIAGNOSTIC CODE 6100)
Poorer Ear
Better  
Ear











XI
100










X
90
80









IX
80
70
60








VIII
70
60
50
50







VII
60
60
50
40
40






VI
50
50
40
40
30
30





V
40
40
40
30
30
20
20




IV
30
30
30
20
20
20
10
10



III
20
20
20
20
20
10
10
10
0


II
10
10
10
10
10
10
10
0
0
0

I
10
10
0
0
0
0
0
0
0
0
0 

XI
X
IX
VIII
VII
VI
V
IV
III
II
I

In considering the evidence of record under the laws and 
regulations as set forth above, the Board concludes that the 
Veteran is not entitled to an increased evaluation for 
bilateral hearing loss.

The Veteran was afforded a VA examination in October 2006 in 
connection with his claim.  He reported difficulty 
understanding speech due to his hearing loss.  An audiogram 
revealed pure tone thresholds, in decibels, as follows:




HERTZ



A
500
B
1000
C
2000
D
3000
E
4000
(B+C+D+E
)/4
Average
RIGHT
15
20
25
50
50
36
LEFT
20
35
55
65
65
55

Speech recognition scores were 92 percent in the right ear 
and 82 percent in the left ear.  The examiner noted that the 
audiogram results from 500 Hertz to 4000 Hertz indicated 
normal hearing acuity through 2000 Hertz, sloping to a 
moderate sensorineural hearing loss in the right ear, and 
normal hearing acuity at 500 Hertz, sloping to moderately 
severe sensorineural hearing loss in the left ear.  

During a July 2006 VA audiology consultation, the Veteran 
reported that he had bilateral hearing loss, but his left 
ear was worse than the right ear.  He indicated that he had 
the most difficulty understanding his wife when she spoke to 
him.  An otoscopic examination was unremarkable.  Audiogram 
results were not provided; however, the audiologist noted 
that pure tone audiometry testing indicated normal hearing 
through 1000 Hertz, sloping to a severe sensorineural 
hearing loss in the right ear, and normal hearing through 
500 Hertz, sloping to a profound sensorineural hearing loss 
in the left ear.  Speech recognition scores were 100 percent 
for the right ear and 72 percent for the left ear.

An August 2006 VA audiology diagnostic study note indicated 
that an auditory brainstem response (ABR) test was 
recommended due to the Veteran's asymmetric sensorineural 
hearing loss.  The study revealed results indicating normal 
neural transmission through auditory brainstem pathways.  It 
was not consistent with retrocochlear pathology.  The 
audiologist placed an order for hearing aids.

During a December 2006 private psychiatric evaluation, the 
Veteran reported that he wore a hearing aid and continued to 
have difficulty hearing when there were a lot of noises 
around him.

In his SSA disability application filed in January 2007, the 
Veteran reported that his hearing loss made being in noisy 
environments difficult and dangerous.  He indicated that his 
last employer terminated his employment due to concerns 
about his physical and mental capabilities.  Specifically, 
the employer noted the Veteran's back problems, a permanent 
weight restriction of 10 pounds, and memory difficulty. 

In a November 2007 statement, the Veteran reported that he 
was unable to hear customers' orders and needed orders 
repeated several times when he worked the counter at fast 
food restaurants for six weeks.  He indicated that, in July 
2005, he tore his rotator cuff in his left shoulder and was 
unable to perform his job as an acoustic ceiling installer.  
Following surgery and rehabilitation, he was unable to 
return to his old job.  He reported that he was provided a 
psychological evaluation as part of his vocational 
rehabilitation program, and as a result of the evaluation, 
it was recommended that he file for SSA disability benefits 
because his psychiatric symptoms and hearing loss prohibited 
him from returning to any type of employment.  He stated 
that the problems presented by his psychiatric disorder and 
hearing loss were a "major factor" in his inability to find 
and maintain employment.

In a September 2009 VA audiology consultation note, the 
examining audiologist noted that the Veteran was previously 
diagnosed with bilateral sensorineural hearing loss.  He 
indicated that the results of an audiogram showed normal 
hearing from 250 to 500 Hertz, sloping to a mild to 
moderately severe sensorineural hearing loss from 1000 to 
8000 Hertz in the right ear, and normal hearing from 250 to 
5000 Hertz, sloping to a mild to severe sensorineural 
hearing loss from 1000 to 8000 Hertz in the left ear.  

During a March 2010 VA examination, the Veteran reported 
difficulty hearing conversations.  An audiogram revealed 
pure tone thresholds, in decibels, as follows:




HERTZ



A
500
B
1000
C
2000
D
3000
E
4000
(B+C+D+E
)/4
Average
RIGHT
20
35
40
55
65
48.75
LEFT
30
35
55
60
75
56.25

Speech recognition scores were 94 percent in the right ear 
and 72 percent in the left ear.  The examiner noted that the 
audiogram results showed essentially normal hearing acuity 
at 250 and 500 Hertz, sloping to a severe sensorineural 
hearing loss in both ears.  He opined that the Veteran's 
hearing loss had significant effects on his occupational 
functioning.  He indicated that the Veteran's hearing loss 
caused poor social interactions and hearing difficulty.

A December 2011 VA examination audiogram revealed pure tone 
thresholds, in decibels, as follows:




HERTZ



A
500
B
1000
C
2000
D
3000
E
4000
(B+C+D+E
)/4
Average
RIGHT
20
35
45
60
70
52
LEFT
30
40
60
65
80
61

Speech recognition scores were 96 percent for the right ear 
and 72 percent for the left ear.  The diagnosis was 
bilateral sensorineural hearing loss.  The examiner opined 
that the Veteran's hearing loss impacted the ordinary 
conditions of daily life, including his ability to work.  
The Veteran reported difficulty hearing in "all listening 
situations," especially in background noise, and he often 
had to ask people to repeat themselves.  The examiner noted 
that he did not consider the Veteran unemployable due to his 
hearing loss.  He noted that many occupations do not rely 
significantly upon hearing and may be performed despite a 
hearing loss.  He indicated that the Veteran may have 
difficulty hearing conversations in background noise, on the 
phone, and when he was unable to see the speaker's face.  

The foregoing evidence shows that the Veteran is not 
entitled to an increased evaluation for bilateral hearing 
loss.

The October 2006 VA audiometric findings equate to Level I 
hearing in the right ear and Level IV hearing in the left 
ear.  See 38 C.F.R. § 4.85, Table VI.  When those values are 
applied to Table VII, it is apparent that the currently 
assigned noncompensable evaluation for the Veteran's 
bilateral hearing loss is accurate and appropriately 
reflects his bilateral hearing loss under the provisions of 
38 C.F.R. § 4.85. 

Likewise, the March 2010 VA audiometric findings equate to 
Level I hearing in the right ear and Level V hearing in the 
left ear.  See 38 C.F.R. § 4.85, Table VI.  When those 
values are applied to Table VII, it is again apparent that 
the currently assigned noncompensable evaluation for the 
Veteran's bilateral hearing loss is accurate and 
appropriately reflects his bilateral hearing loss under the 
provisions of 38 C.F.R. § 4.85. 

Additionally, the December 2011 VA audiometric findings 
equate to Level I hearing in the right ear and Level V 
hearing in the left ear.  See 38 C.F.R. § 4.85, Table VI.  
When those values are applied to Table VII, a compensable 
evaluation is still not warranted. 

The Board has also considered whether an initial compensable 
evaluation for bilateral hearing loss is warranted under 38 
C.F.R. § 4.86.  However, the Veteran's disability does not 
meet the requirements of 38 C.F.R. § 4.86.  In this regard, 
the available audiometric findings do not show the Veteran 
to have puretone thresholds of 55 decibels or more at each 
of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or 
a puretone threshold of 30 decibels or less at 1,000 hertz 
and 70 decibels or more at 2,000 hertz.  Thus, the Board 
finds that the noncompensable evaluation is appropriate and 
that there is no basis for awarding a higher initial 
evaluation. 

In reaching this decision, the potential application of 
various provisions of Title 38 Code of Federal Regulations 
have been considered, whether or not they were raised by the 
Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  
In particular, the Board has considered the provisions of 38 
C.F.R. § 3.321(b)(1).  However, in this case, the Board 
finds that the record does not show that the Veteran's 
bilateral hearing loss is so exceptional or unusual as to 
warrant the assignment of a higher rating on an extra-
schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012). 

The threshold factor for extraschedular consideration is a 
finding that the evidence before VA presents such an 
exceptional disability picture that the available schedular 
evaluations for that service-connected disability are 
inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In 
this regard, there must be a comparison between the level of 
severity and symptomatology of the claimant's service- 
connected disability with the established criteria found in 
the rating schedule for that disability.  If the criteria 
reasonably describe the claimant's disability level and 
symptomatology, then the claimant's disability picture is 
contemplated by the rating schedule and the assigned 
schedular evaluation is therefore adequate, and no 
extraschedular referral is required.  Id., see also 
VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular 
evaluation does not contemplate the claimant's level of 
disability and symptomatology and is found inadequate, VA 
must determine whether the claimant's exceptional disability 
picture exhibits other related factors, such as those 
provided by the extraschedular regulation (38 C.F.R. 
§ 3.321(b)(1)) as "governing norms" (which include marked 
interference with employment and frequent periods of 
hospitalization). 

The evidence in this case does not show such an exceptional 
disability picture that the available schedular evaluation 
for the service-connected disability is inadequate.  A 
comparison between the level of severity and symptomatology 
of the Veteran's assigned rating with the established 
criteria found in the rating schedule shows that the rating 
criteria reasonably describe the Veteran's disability level 
and symptomatology.  As discussed above, there are higher 
ratings available under the diagnostic code, but the 
Veteran's disability is not productive of such 
manifestations.  As such, it cannot be said that the 
available schedular evaluation for the disability is 
inadequate. 

The Board further observes that, even if the available 
schedular evaluation for the disability is inadequate (which 
it manifestly is not), the Veteran does not exhibit other 
related factors such as those provided by the regulation as 
"governing norms."  The record does not show that the 
Veteran has required frequent hospitalizations for his 
bilateral hearing loss, and there is nothing in the record 
to indicate that the Veteran's hearing loss causes 
impairment with employment over and above that which is 
contemplated in the assigned schedular rating.  See Van 
Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the 
disability rating itself is recognition that industrial 
capabilities are impaired).  

Indeed, as noted above, the Veteran reported that his 
hearing loss made it difficult to hear customers' orders 
while working at the counter of a fast food restaurant and, 
in combination with his psychiatric symptoms, his hearing 
loss prevented him from finding and maintaining employment; 
however, the evidence of record suggests that the Veteran's 
usual employment was installing acoustic ceilings and he was 
unable to work due to physical limitations from orthopedic 
disabilities.  In fact, in his January 2007 SSA disability 
benefits application, the Veteran indicated that his last 
employer terminated his employment due to concerns about his 
physical and mental capabilities.  Specifically, the 
employer noted the Veteran's back problems, a permanent 
weight restriction of 10 pounds, and memory difficulty.  He 
did not mention that his employer had concerns regarding his 
hearing loss.  Moreover, the December 2011 VA examiner noted 
that he did not consider the Veteran unemployable due to his 
hearing loss.  He acknowledged that the Veteran may have 
difficulty hearing conversations in background noise, on the 
phone, or when he was unable to see the speaker's face, but 
he noted that many occupations do not rely significantly 
upon hearing and may be performed despite hearing loss.  

Based on the foregoing, the Board finds that the 
requirements for an extraschedular evaluation for the 
Veteran's service-connected bilateral hearing loss under the 
provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 
8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 
(2008). 

Service Connection

The Veteran contends that he has a current bilateral knee 
disorder resulting from an injury in service.  Specifically, 
he reported that he was thrown off of a tank during his 
service in Vietnam.  Additionally, he reported that he had 
other injuries to his knees from the "physical wear and tear 
from jumping from helicopters, humping 80 pound field 
transport packs..., and being constantly wet for 9 months 
while in Vietnam..."  See March 2004 statement.

Service connection may be established for disability 
resulting from personal injury suffered or disease 
contracted in line of duty in the active military, naval, or 
air service.  38 U.S.C.A. §§ 1110, 1131.  That an injury or 
disease occurred in service is not enough; there must be 
chronic disability resulting from that injury or disease.  
If there is no showing of a resulting chronic condition 
during service, then a showing of continuity of 
symptomatology after service is required to support a 
finding of chronicity.  38 C.F.R. § 3.303(b).  Service 
connection may also be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d). 

The term "chronic disease," whether as manifest during 
service or manifest to a compensable degree within a 
presumptive window following service, applies only to those 
disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 
3.309(a).  Walker v. Shinseki, No. 2011-7184, slip op. at 13 
(U.S. Fed. Cir. Feb. 21, 2013).  

Service connection for certain diseases, such as arthritis, 
may be also be established on a presumptive basis by showing 
that it manifested itself to a degree of 10 percent or more 
within one year from the date of separation from service.  
38 C.F.R. §§ 3.307(a)(3), 3.309(a). 

In order to establish entitlement to service connection for 
a disability, the Veteran must 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, 1166-67 (Fed. Cir. 2004). 

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 appellant prevailing in either event, or whether a 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 
2002); 38 C.F.R. § 3.102 (2012).

In considering the evidence of record under the laws and 
regulations as set forth above, the Board concludes that the 
Veteran is not entitled to service connection for a 
bilateral knee disorder.

A January 1963 enlistment examination documented a normal 
evaluation of the lower extremities.  In an associated 
report of medical history, the Veteran denied having, or 
having a history of, arthritis or rheumatism; bone, joint, 
or other deformity; or a "trick" or locked knee.

A January 1967 separation examination also documented a 
normal evaluation of the lower extremities.  In an 
associated report of medical history, the Veteran again 
denied having, or having a history of, arthritis or 
rheumatism; bone, joint, or other deformity; or a "trick" or 
locked knee.

During a January 2004 VA psychiatry evaluation, the Veteran 
complained of knee pain.

In a January 2004 statement, the Veteran's employer 
indicated that the Veteran took as much as one week of time 
off from work at a time when his knees were bothering him.  

In a February 2004 VA treatment note, it was documented that 
the Veteran complained of bilateral knee pain. 

In a statement received by VA in March 2004, the Veteran 
reported that he was injured when he was thrown from a tank 
in October 1965 in Vietnam.  He reported that the base was 
attacked by Viet Cong and stated that he was riding on a 
tank to counterattack and drive the attackers toward Danang 
Bay.  He indicated that, during the chase, the tank that he 
was riding on made a sudden, high speed turn which swung the 
gun turret and knocked him off of the tank.  He indicated 
that he landed on top of some debris and bruised his back 
and legs.  Additionally, he reported that he had other 
injuries to his knees from the "physical wear and tear from 
jumping from helicopters, humping 80 pound field transport 
packs..., and being constantly wet for 9 months while in 
Vietnam..."

In a March 2004 private treatment note, the Veteran reported 
that he had arthritis in his knees.  He indicated that he 
was originally diagnosed with knee problems in the 1970s.  
An examination of the knees revealed crepitus.  The 
diagnosis was knee pain related to osteoarthritis.

March 2004 private x-rays of the bilateral knees showed 
minimal osteoarthritis in the right knee and an unremarkable 
left knee.

In a statement received by VA in April 2004, the Veteran 
reported that he was thrown from a truck on the runway at 
Naval Air Facility in Atsugi, Japan.  He stated that he was 
evacuated from a plane when the brakes caught fire and 
loaded onto a truck with wooden side and rear rails for a 
ride to the terminal.  He noted that the truck was "not 
equipped to carry personnel" and had no seats.  He also 
indicated that he was wearing an 80 pound field transport 
pack and carrying his rifle because he was on his way to 
join his unit for cold weather training at Mount Fuji.  He 
reported that the driver of the truck made a high speed U-
turn on the runway, throwing everyone to one side of the bed 
of the truck, and the side rail broke.  He stated that he 
fell on his back, and he believed the incident was a 
"contributing factor" to his current back problems.  He did 
not report that he injured his knees during the accident.

In a May 2004 VA treatment note, the Veteran complained of 
knee pain from osteoarthritis.

In a September 2004 VA treatment note, the Veteran 
complained of right knee pain. 

During a September 2004 VA posttraumatic stress disorder 
(PTSD) examination, the Veteran reported that he was "never 
physically injured" during his Vietnam service.  

In a statement received by VA in November 2004, J. L. 
reported that he was also a passenger on the tank that threw 
the Veteran to the ground in 1965.  He reported that the 
tank was carrying approximately ten Marines at the time of 
the accident.  He stated that the tank turned at a 90 degree 
angle and the turret rotated hard to the left, turning racks 
of five gallon water cans around it.  He reported that the 
water cans struck the Veteran in the knees and threw them 20 
to 30 feet into the gravel.  He reported that he had broken 
knee caps after being thrown from the tank and he remembered 
that the Veteran was injured too.  He indicated that their 
knees and hands were "extremely swollen" from the impact of 
landing at a high speed while wearing full combat gear.  He 
reported that they wrapped their legs and knees and were 
treated by several corpsmen, but "going to Charlie Medical 
was out of the question" due to a shortage of men in their 
company and platoon. 

During a May 2005 private psychiatric evaluation, the 
Veteran reported that he injured his back when he was thrown 
from a tank and later when he was thrown from a truck in 
Vietnam.  He did not mention any knee injuries from the 
accidents.

During a December 2005 hearing before the Decision Review 
Officer (DRO), the Veteran testified that he injured his 
knees when he was thrown from a tank in Vietnam.  With 
respect to treatment for his knee injuries in service, he 
stated, "You kind of have to understand the mindset when you 
are there, especially in the Marine Corps in the 60's.  If I 
could get up and out of my rack in the morning and do my 
job, that is what I did.  You try to keep things like going 
to see the corpsman at a minimum... I was never like in a 
hospital there.  I am not really sure since we were the 
first full Marine division or any military division that 
went to Vietnam that was even set up yet."  With respect to 
treatment for his knees following service, he reported that 
he did not seek continuous treatment because "they really 
didn't bother" him.  He indicated that his knee pain 
"started showing up" in the early 1970s.  

During a February 2006 private orthopedic evaluation for a 
workers' compensation claim pertaining to a left shoulder 
injury, the Veteran reported that he injured his knees in 
Vietnam.  

During a September 2006 VA joints examination, the Veteran 
indicated that he injured his knees during service.  He 
denied any definite trauma with the exception of a chronic, 
nonspecific injury.  An examination of the bilateral knees 
was unremarkable with the exception of crepitus with passive 
range of motion in the right knee.  X-rays of the left knee 
revealed tricompartmental osteoarthritis and prepatellar 
soft tissue swelling.  A magnetic resonance imaging (MRI) 
study of the right knee also showed a small effusion with 
minor tricompartmental degenerative changes, degeneration of 
the anterior horn medial meniscus and anterior horn of the 
lateral meniscus, and a tear involving the posterior horn of 
the medial meniscus.  The diagnosis was bilateral knee pain 
with tricompartmental osteoarthritis of both knees and a 
medial meniscus tear and degeneration of the right knee.  
The examiner noted that these degenerative changes were at 
least as likely as not related to chronic nonspecific 
service-related trauma or physical training.  She noted that 
non-specific recurrent trauma, such as marching and running, 
frequently led to degenerative changes of the major joints 
of the lower extremities.

In a December 2006 VA addendum opinion, the examiner 
provided the following:

Review of the [claims] file again shows 
an around 20-page detailed report by the 
[V]eteran which details his activities 
while in service.  These activities 
include constantly running patrols, 
ambushes, security details, and large-
scale operations.  He specifically gives 
details of an operation where he was 
blown off of a tank and landed on top of 
debris and bruised his back and legs, 
and gives multiple accounts to the same 
effect, where he was in the middle of 
gun fire, and he was running to escape 
being shot, or chasing the enemy, or 
avoiding explosions.  He also 
specifically gives account of injuries 
to his back and knees suffered in 
Vietnam.  Physical wear and tear from 
jumping from helicopters, from humping 
80-pound field transport packs on his 
back, could very well lead to 
degenerative changes over following 
years.

The VA examiner confirmed that, therefore, it was her 
opinion that the degenerative changes noted were as least as 
likely as not secondary to the service-related physical 
activities.  

During a March 2007 VA physical medicine rehabilitation 
consultation, the Veteran reported that he injured his back 
on two instances during service when he was knocked off of a 
tank and when he was thrown from a truck.  He did not 
mention injuring his knees during these incidents.  He noted 
that his current service-connected low back symptoms 
included pain that radiated to his hip area and down to his 
knees.  He indicated that he had osteoarthritis and a 
possible tear in his right knee.  The diagnoses included 
osteoarthritis of both knees.

September 2009 VA x-rays of the bilateral knees revealed 
normal knees, bilaterally.

During a November 2012 VA general medical examination, the 
examiner noted that the Veteran denied a specific knee 
injury.  She indicated that a review of the claims file did 
not show a knee injury and noted that September 2009 x-rays 
showed normal knees.  The Veteran reported that his knee 
symptoms remained unchanged since 2009; therefore, the 
examiner did not order new x-rays.  She also observed that 
the Veteran used a cane primarily to support his back.  The 
examiner opined that the Veteran's claimed bilateral knee 
disorder was less likely than not incurred in or caused by 
the claimed in-service injury, event, or illness.  She 
indicated that there was no knee injury in service.  She 
further noted that x-rays of the knees were normal and did 
not show evidence of arthritis.  She also reported that her 
examination of the knees was largely unremarkable; 
therefore, she was unable to make a diagnosis.  

On review, the Board concludes that the Veteran's current 
bilateral knee disorder did not manifest in service or 
within one year after separation from service.  

The Veteran's service treatment records do not document any 
complaints, treatment, or diagnosis pertaining to his knees.

With respect to the Veteran's statements that he injured his 
knees in service, the Board notes that he is competent to 
report his experience and symptoms in service and 
thereafter.  While lay persons are generally not competent 
to offer evidence which requires medical knowledge, such as 
opinions regarding medical causation or a diagnosis, they 
may provide competent testimony as to visible symptoms and 
manifestations of a disorder.  Jones v. Brown, 7 Vet. App. 
134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 
(1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan 
v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).  A veteran can 
attest to factual matters of which he or had had 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 Federal Circuit has held that lay evidence is one type 
of evidence that must be considered, if submitted, when a 
veteran seeks disability benefits, and competent lay 
evidence can be sufficient in and of itself for proving the 
existence of a chronic disease.  See Buchanan, 451 F.3d at 
1335; 38 C.F.R. §§ 3.303(a), 3.307(b).  The Board, however, 
retains the discretion to make credibility determinations 
and otherwise weigh the evidence submitted, including lay 
evidence.  Buchanan, 451 F.3d at 1336.  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 (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")); see also Barr v. Nicholson, 
21 Vet. App. 303 (2007). 

In this case, the Board finds that the Veteran is competent 
to state that he has had knee problems since his military 
service.  However, his allegations are inconsistent with the 
contemporaneous record.  As previously discussed, there is 
no evidence of any complaints, treatment, or diagnosis in 
service, and his lower extremities were documented as being 
within normal limits at the time of his separation from 
service.  As such, there is actually affirmative evidence 
showing that he did not have a knee disorder at the time of 
his separation from service.  

Additionally, the Veteran has actually admitted that his 
bilateral knee pain manifested in the early 1970s, following 
his separation from service.  In fact, during a December 
2005 DRO hearing, he testified that he did not seek 
continuous treatment for his knees following service because 
"they really didn't bother" him.  He indicated that his knee 
pain "started showing up" in the early 1970s.  Thus, the 
Veteran himself has indicated that he did not have any 
symptomatology or problems during his military service or 
within one year thereafter.

The Board also finds that the Veteran's contentions that he 
injured his knees after being thrown from a tank and/or a 
truck during service are inconsistent throughout the record.  
The Veteran also submitted buddy statements from a fellow 
Marine in support of his claim that he injured his knees 
when he was thrown from a tank in Vietnam.  However, during 
a September 2004 VA posttraumatic stress disorder (PTSD) 
examination, the Veteran himself reported that he was "never 
physically injured" during his Vietnam service.  Likewise, 
during the November 2012 VA examination, he denied any 
specific knee injuries.  Additionally, in statements dated 
in April 2004, May 2005, and March 2007, he provided 
detailed statements discussing the tank and truck accidents; 
however, in the statements, he alleged that he injured his 
low back and did not mention any knee injuries.

For these reasons, the Board finds that the Veteran's 
reported history regarding the onset of his bilateral knee 
disorder to be not credible. 

Furthermore, there is no documented evidence of any 
complaints pertaining to his knees until he complained of 
knee pain during a January 2004 VA psychiatry evaluation.  A 
prolonged period without medical complaint can be 
considered, along with other factors concerning a claimant's 
health and medical treatment during and after military 
service, as evidence of whether an injury or a disease was 
incurred in service which resulted in any chronic or 
persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000).  Thus, the weight of the evidence of 
record show that his current bilateral knee disorder did not 
manifest in service or for many decades thereafter.  
Contemporaneous evidence has greater probative value than 
history as reported by the Veteran.  See Curry v. Brown, 7 
Vet. App. 59, 68 (1994). 

To the extent that the Veteran has opined that his current 
knee disorder is related to his military service, the Board 
notes that lay witnesses are competent to opine as to some 
matters of diagnosis and etiology.  The Board must determine 
on a case by case basis whether a Veteran's particular 
disability is the type of disability for which lay evidence 
is competent.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 
(Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, 
n. 4 (2011). 

In this case, the Veteran's testimony indicating that he has 
a current knee disorder that developed years later as a 
result of an earlier in-service injury is testimony as to an 
internal medical process, which extends beyond an 
immediately observable cause-and-effect relationship that is 
of the type that the courts have found to be beyond the 
competence of lay witnesses.  Compare Jandreau v. Nicholson, 
492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of 
diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. 
App. 303, 308-9 (2007) (lay testimony is competent to 
establish the presence of varicose veins); with Clemons v. 
Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the 
province of medical professionals to diagnose or label a 
mental condition, not the claimant."); Woehlaert v. 
Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose 
veins or a dislocated shoulder, rheumatic fever is not a 
condition capable of lay diagnosis); Jandreau, 492 F.3d at 
1377, n. 4 ("sometimes the layperson will be competent to 
identify the condition where the condition is simple, for 
example a broken leg, and sometimes not, for example, a form 
of cancer"). 

Nevertheless, even assuming that the Veteran is competent to 
opine on this medical matter, the Board finds that the 
specific, reasoned opinion of the November 2012 VA examiner 
is of greater probative weight than the Veteran's more 
general lay assertions.

It is the responsibility of the Board to assess the 
credibility and weight to be given the evidence.  See Hayes 
v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. 
Derwinski, 1 Vet. App. 190, 192-93 (1992)).  The probative 
value of medical evidence is based on the provider's 
knowledge and skill in analyzing the data, and the medical 
conclusion the provider reaches; as is true of any evidence, 
the credibility and weight to be attached to medical 
opinions are within the province of the Board.  See 
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

When reviewing such medical opinions, the Board may 
appropriately favor the opinion of one competent medical 
authority over another.  See Owens v. Brown, 7 Vet. App. 
429, 433 (1995).  However, the Board may not reject medical 
opinions based on its own medical judgment.  Obert v. Brown, 
5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. 
App. 171 (1991).  In assessing medical opinions, the failure 
of the physician to provide a basis for his opinion goes to 
the weight or credibility of the evidence in the 
adjudication of the merits.  See Hernandez-Toyens v. West, 
11 Vet. App. 379, 382 (1998).  Other factors for assessing 
the probative value of a medical opinion are the physician's 
access to the claims file and the thoroughness and detail of 
the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 
(2000).  However, a medical opinion may not be discounted 
solely because the examiner did not review the claims file.  
Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

In the September 2006 VA opinion, the examiner opined that 
the degenerative changes in the Veteran's knees were at 
least as likely as not related to chronic nonspecific 
service-related trauma or physical training.  She noted that 
non-specific recurrent trauma such as marching and running 
frequently led to degenerative changes of the major joints 
of the lower extremities.  In a December 2006 VA addendum 
opinion, the examiner provided the following:

Review of the [claims] file again shows 
an around 20-page detailed report by the 
[V]eteran which details his activities 
while in service.  These activities 
include constantly running patrols, 
ambushes, security details, and large-
scale operations.  He specifically gives 
details of an operation where he was 
blown off of a tank and landed on top of 
debris and bruised his back and legs, 
and gives multiple accounts to the same 
effect, where he was in the middle of 
gun fire, and he was running to escape 
being shot, or chasing the enemy, or 
avoiding explosions.  He also 
specifically gives account of injuries 
to his back and knees suffered in 
Vietnam.  Physical wear and tear from 
jumping from helicopters, from humping 
80-pound field transport packs on his 
back, could very well lead to 
degenerative changes over following 
years.

The September 2006 VA examiner confirmed that, therefore, it 
was her opinion that the degenerative changes noted were as 
least as likely as not secondary to the Veteran's reported 
service-related physical activities.  

The September 2006 VA examiner based her opinions on the 
Veteran's reported history.  The Board notes that a medical 
opinion formed on the basis of the Veteran's reported 
medical history cannot be rejected without the Board first 
finding that the Veteran's allegations are not credible.  
Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005); Buchanan 
v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding the 
Board cannot determine that a Veteran's statements lack 
credibility merely based on a lack of such documentation in 
the service treatment records).  Here, as discussed above, 
the Board finds reason to doubt the credibility of the 
Veteran's statements.

The Board finds the November 2012 VA examiner's opinion to 
be more probative than the September 2006 VA examiner's 
opinion.  The examiner reviewed the Veteran's reported 
history as well as the information and evidence in the 
claims folder, and she provided a thorough and adequate 
rationale that is supported by the evidence of record.  
Indeed, the examiner specifically discussed the lack of 
documentation of any knee injuries in the service treatment 
records.  Moreover, she found that the evidence did not 
support a current diagnosis pertaining to the bilateral 
knees.  

On the other hand, the September 2006 VA examiner did not 
discuss the fact that the Veteran's service treatment 
records were negative for any complaints, treatment, or 
diagnosis of any bilateral knee injuries, including the 
affirmative findings at the time of the separation 
examination that revealed normal lower extremities.  She 
also did not acknowledge the decades-long evidentiary gap 
between the Veteran's separation from service and his first 
documented complaints regarding his knee pain.  Nor did she 
provide a thorough rationale, such as an explanation of how 
degenerative changes manifest over following years after 
initial physical trauma.

The value of a physician's statement is dependent, in part, 
upon the extent to which it reflects "clinical data or other 
rationale to support his opinion."  Bloom v. West, 12 Vet. 
App. 185, 187 (1999).  Thus, a medical opinion is inadequate 
when it is unsupported by clinical evidence.  Black v. 
Brown, 5 Vet. App. 177, 180 (1995).  See also Knightly v. 
Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. 
App. 345, 348 (1998) (medical opinions must be supported by 
clinical findings in the record and conclusions of medical 
professionals which are not accompanied by a factual 
predicate in the record are not probative medical opinions).  
In this case, and based on the foregoing, the Board attaches 
the greatest probative weight to the opinion of the November 
2012 VA examiner who had the benefit and review of all 
pertinent medical records and who provided a rationale 
supported by the record.

As the Veteran has a diagnosis of arthritis, section 
3.303(b) is applicable.  However, arthritis was not 
diagnosed or identified during service, and the separation 
examination was normal.  Thus, chronicity may be 
legitimately questioned.  Walker, supra.  In fact, he did 
not seek treatment for knee pain until more than 35 years 
after service.  Such evidence clearly establishes that 
arthritis was not manifest during service or within one year 
of separation.  The evidence also establishes that there is 
no continuity of symptomatology in regard to arthritis.

Therefore, the preponderance of the evidence is against the 
claim for entitlement to service connection for a bilateral 
knee disorder.  The benefit-of-the-doubt doctrine is 
therefore not for application, and the claim must be denied.  
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan 
v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

An initial compensable evaluation for bilateral hearing loss 
is denied.

Service connection for a bilateral knee disorder is denied.


REMAND

In this case, the Veteran contends that his current skin 
rash disorder, variously diagnosed as eczema or psoriasis, 
is a result of exposure to herbicides during service in 
Vietnam.  

As part of the duty to assist a Veteran in developing the 
facts and evidence concerning a service connection claim, VA 
must provide an examination for a medical nexus opinion when 
there is: (1) competent evidence of a current disability or 
persistent or recurrent symptoms of a disability; (2) 
evidence establishing that an event, injury, or disease 
occurred in service or establishing certain diseases 
manifested during an applicable presumptive period for which 
he qualifies; and (3) an indication that the disability or 
persistent or recurrent symptoms of a disability may be 
associated with his service or a service-connected 
disability; but (4) insufficient competent medical evidence 
on file for VA to make a decision on the claim.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. 
§ 5103A (d)(2); 38 C.F.R. § 3.159(c)(4).

A review of the service treatment records shows that the 
Veteran was treated for a skin infection from March 1969 to 
April 1966.  The Veteran also has current diagnoses of 
psoriasis and eczema and is competent to report experiencing 
a skin rash since service.  However, it is unclear whether 
the current diagnosis is related to the Veteran's military 
service, to include exposure to herbicide agents.  
Therefore, the Board must obtain a medical opinion before 
adjudicating this claim.  See McLendon v. Nicholson, 20 Vet. 
App. 79 (2006); 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 
3.159(c)(4).

The Board also notes that the Virtual VA paperless claims 
file contains a statement from the Veteran's representative 
that includes the issue of entitlement to an initial 
evaluation in excess of 50 percent for PTSD.  The RO 
previously determined that the issue was not on appeal.  
Historically, the issue was included in a February 2007 
statement of the case (SOC); a March 2007 VA Form 9, Appeal 
to the Board; a subsequent SSOC dated in July 2009; and a 
second VA Form 9 dated in August 2009 in which the Veteran 
indicated that he wanted to appeal all of the issues listed 
on the SOC and any SSOC that he received.  Thereafter, in 
September 2009, the Veteran submitted another VA Form 9 
dated in January 2009 that did not include the issue.  
Rather, he stated, "I am only appealing these issues: 
ec[z]ema, claimed as a skin condition[;] residuals of 
injury, right [and] left knees[;] and hearing loss being 
held at 0%."  However, he did not specifically state that he 
wanted to withdraw his claim for a higher initial evaluation 
for PTSD.  Thereafter, the RO issued an SSOC in April 2010 
that did not include the issue, and the Veteran submitted a 
fourth VA Form 9 dated in May 2010 that indicated that he 
wanted to appeal all of the issues listed on the SOC and any 
SSOC that he received.  Thus, it is unclear as to whether 
the Veteran intended to withdraw the claim or whether he 
wanted to continue with the already perfected appeal.  
Therefore, clarification from the Veteran is necessary prior 
to proceeding with the adjudication of this claim.

Moreover, if the Veteran indicates an intent to proceed with 
his claim for a higher initial evaluation for PTSD, the 
Board finds that additional development is necessary to 
ensure that is ready for adjudication.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC must contact the Veteran to 
determine if he intends to proceed with 
his claim of entitlement to a higher 
initial evaluation for PTSD.  If he wishes 
to withdraw the appeal, he must 
specifically indicate his intent in 
writing.

2.  The RO/AMC should request that the 
Veteran identify the names, addresses, and 
approximate dates of treatment for any VA 
and non-VA health care providers who have 
treated him for his skin disorder, as well 
as PTSD if he does not withdraw that issue 
from the appeal.  A specific request 
should be made for any outstanding VA 
treatment records dated after March 2012.

After obtaining any necessary 
authorization from the Veteran, the RO/AMC 
should attempt to obtain copies of 
pertinent treatment records identified by 
the Veteran in response to this request 
that are not already contained in the 
claims file.  Any negative search result 
should be noted in the record. 

3.  After the foregoing development has 
been completed, the RO/AMC should schedule 
the Veteran for a VA examination to 
determine the nature and etiology of any 
skin disorder that may be present.  

The examiner is requested to review all 
pertinent records associated with the 
claims file, including the Veteran's 
service treatment records, post-service 
medical records, and statements. 

It should be noted that the Veteran is 
competent to attest to observable 
symptomatology.  If there is a medical 
basis to support or doubt the history 
provided by the Veteran, the examiner 
should provide a fully reasoned 
explanation.

It should also be noted that the Veteran 
served in the Republic of Vietnam during 
the Vietnam era and is presumed to have 
been exposed during such service to 
certain herbicide agents, including Agent 
Orange.
 
The examiner is requested to review the 
claims file and to identify any current 
skin disorder.

For each diagnosis identified, the 
examiner should discuss whether it is at 
least as likely as not that the disorder 
manifested in service or is otherwise 
causally or etiologically related to his 
military service, to include exposure to 
herbicide agents.  

(The term "at least as likely as not" does 
not mean within the realm of medical 
possibility, but rather that the medical 
evidence both for and against a conclusion 
is so evenly divided that it is as 
medically sound to find in favor of 
conclusion as it is to find against it.) 

A clear rationale for all opinions would 
be helpful and a discussion of the facts 
and medical principles involved would be 
of considerable assistance to the Board.  
Because it is important "that each 
disability be viewed in relation to its 
history [,]" 38 C.F.R. § 4.1, copies of 
all pertinent records in the appellant's 
claims file, or in the alternative, the 
claims file, must be made available to the 
examiner for review. 

4.  If the issue of entitlement to a 
higher initial evaluation for PTSD remains 
on appeal, the Veteran should be afforded 
a VA examination to ascertain the current 
severity and manifestations of that 
disability.  Any and all studies, tests, 
and evaluations deemed necessary by the 
examiner should be performed.  The 
examiner is requested to review all 
pertinent records associated with the 
claims file and to comment on the severity 
of the Veteran's service-connected PTSD. 

The examiner should report all signs and 
symptoms necessary for rating the 
Veteran's PTSD under the General Rating 
Formula for Mental Disorders.  The 
findings of the examiner should address 
the level of social and occupational 
impairment attributable to the Veteran's 
PTSD.  In particular, he or she should 
indicate whether the Veteran has 
occupational and social impairment with 
reduced reliability and productivity; 
occupational and social impairment with 
deficiencies in most areas, such as work, 
school, family relations, judgment, 
thinking, or mood; or, total occupational 
and social impairment. 

A clear rationale for all opinions would 
be helpful and a discussion of the facts 
and medical principles involved would be 
of considerable assistance to the Board.  
Because it is important "that each 
disability be viewed in relation to its 
history [,]" 38 C.F.R. § 4.1, copies of 
all pertinent records in the appellant's 
claims file, or in the alternative, the 
claims file, must be made available to the 
examiner for review.

5.  After the above development has been 
completed, the RO/AMC should review the 
claims file to ensure that the 
aforementioned development and remand 
instructions have been fully and properly 
executed.  Any noncompliance found should 
be rectified with the appropriate 
development. 

6.  Thereafter, the RO/AMC should 
readjudicate the Veteran's claim of 
entitlement to service connection for a 
left foot disorder.  If the benefit sought 
on appeal remains denied, the Veteran and 
his representative should be furnished a 
SSOC and afforded the opportunity to 
review the claims file and submit written 
arguments on the Veteran's behalf, to 
include, as appropriate, a VA Form 646, or 
the equivalent, before the record is 
returned to the Board for further 
appellate review, if appropriate. 

The Veteran has the right to submit additional evidence and 
argument on the matter 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).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs