Citation Nr: 1331326	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  09-45 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right foot disability.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel




INTRODUCTION

The Veteran served on active duty from September 1960 to September 1962.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO).  These matters were previously before the Board in May 2013 when they were remanded for further development.  They have now returned to the Board for appellate review.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. A hearing loss disability of either ear was not manifest in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to his service, or to any event or injury therein.

2. The Veteran's current bilateral knee disability is not etiologically related to his active service, to include to any service-connected disability.  






CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013).

2. The criteria for service connection for a bilateral knee disability, to include as secondary to a service-connected right foot disability, have not been met.  38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in April 2008, July 2008, May 2009, May 2010, and May 2013 that fully addressed all notice elements; additionally, the Board notes that the April 2008 and the July 2008 letters were sent prior to the RO's initial decision in this matter.  These letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  These letters also informed the Veteran how disability ratings and effective dates were established.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The Board finds that all necessary development has been accomplished and therefore appellate review of the claim addressed above may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service treatment records (STRs) and pertinent postservice treatment records.  Further, in accordance with the Board's May 2013 remand, the Veteran was afforded appropriate VA examinations in June 2013.  The Board notes that these examinations were conducted in conjunction with a complete review of the Veteran's claims files and the examiners provided explanations for their opinions.  Additionally, in July 2013 an addendum to the June 2013 VA audiometry evaluation was obtained to provide further explantation for the opinion.  Under these circumstances, the Board finds these examinations are adequate and that there has been substantial compliance with the May 2013 remand instructions, and an additional remand to comply with the Board's directives is not required.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Legal Criteria and Analysis

The Board has reviewed all of the evidence in the claims folders.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may 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) (2012). 

In a claim for secondary service connection, the regulations provide that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310.  In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other.  Buckley v. West, 12 Vet. App. 76, 84 (1998).  Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability.  See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 

Certain chronic diseases (including organic diseases of the nervous system, to include SNHL, and arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system and arthritis).  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Service Connection for Bilateral Hearing Loss

Hearing loss disability is defined by regulation.  For the purpose 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran contends that he is entitled to service connection for his bilateral hearing loss disability, as such was caused by his active service.  Specifically, he contends that his duties while stationed at Fort Knox, Kentucky, caused him to be exposed to noise; which lead to his current hearing loss.   

A review of the Veteran's DD form 214 shows that his military occupational specialty (MOS) while on active service was light vehicle driver.  

A review of the Veteran's STRs is silent for any complaints or diagnosis of hearing loss.  On July 1960 induction examination, the Veteran's ears were found to be abnormal on clinical evaluation and he was noted to have a history of perforated tympanic membrane.  However, it was noted that this was not considered to be disabling.  While the Veteran's hearing was 15/15 on whispered voice test, there was no audiology conducted on induction examination and there is no separation examination associated with the Veteran's STRs.  

A March 1962 STR shows that the Veteran was seen for complaints of cold symptoms and he was found to have an infection in his left ear, which was treated.  There is no evidence this infection recurred and did not resolve with treatment.  

Postservice VA treatment records show that in August 1978 the Veteran was seen for an audiological evaluation.  At that time he reported noise exposure during his military service.  On audiometry, puretone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
15
45
LEFT
10
10
10
30
55

In October 1978, the Veteran received inpatient treatment at the VA Medical Center for conditions unrelated to his hearing loss disability; however, his hearing loss was evaluated at that time.  Audiograms conducted during his inpatient treatment showed high frequency hearing loss consistent with noise exposure.  

A December 1997 VA treatment record shows that the Veteran was seen for an audiological consultation.  At that time he complained of hearing loss that had manifested approximately 10 years earlier.  He reported a history of noise exposure.  On audiometry, puretone thresholds, in decibels, were: 







HERTZ



500
1000
2000
3000
4000
RIGHT
20
35
35
65
70
LEFT
20
20
35
55
60

Speech audiometry revealed speech recognition ability of 88 percent in both ears.

A February1998 VA treatment record shows the Veteran was seen for an audiological hearing aid evaluation.  On audiometry, puretone thresholds, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
40
40
65
70
LEFT
20
20
40
65
70

In February 1999 the Veteran was seen at the VA Medical Center for an annual audiology evaluation.  He reported that he was not happy with his hearing aids.  It was noted that he had mild to severe SNHL bilaterally and there had been no significant change in his hearing acuity since December 1997.  

A January 2000 VA treatment record notes that the Veteran was again seen for his annual audiology evaluation.  It was noted that his hearing thresholds appeared to be better than those noted in February 1999.  

The remainder of the VA treatment notes of record show that the Veteran maintains regular treatment at the VA Medical Center for a variety of medical conditions, and that his hearing loss continues to be monitored.  However, there is no indication in the VA treatment notes that his hearing loss was a result of any noise exposure sustained during active service.  

Pursuant to the May 2013 Board remand, the Veteran was afforded a VA audiological examination in June 2013.  At that time the Veteran was noted to have been a light vehicle driver during active service, which was not noted to cause an excessive amount of noise exposure.  The Veteran reported a history of postservice occupational noise exposure from working in a refrigeration compressor plant and he reported that he did not initially wear hearing protection in that occupation, as it was not mandated by OSHA (the Occupational Safety and Health Administration) until later in his career.  Audiometry revealed that, puretone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
35
55
55
70
65
LEFT
25
30
45
65
70

Average puretone thresholds were 61 in the right ear and 52 in the left ear.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 96 percent in the left ear.  The examiner diagnosed bilateral SNHL.  The examiner opined that the Veteran's bilateral SNHL was less likely as not due to military noise exposure and explained that his MOS during active service was not shown to involve any significant noise exposure and there was no evidence of any complaints of hearing loss during active service.  Further, the examiner noted that the Veteran had postservice occupational noise exposure from working in a refrigeration compressor plant, without hearing protection.  The examiner also noted that the Veteran did not complain of hearing loss until 1978, which was 16 years after his separation from active service.  The Board notes that the June 2013 examination report reflects that the examiner marked the box indicating that the Veteran's bilateral SNHL was as likely as not related to his active service; however, the Board finds that this was a clerical error.  In this regard, the Board notes that the examiner expressly stated that the Veteran's bilateral SNHL was less likely as not related to his active service, and provided a rationale supporting such an opinion.  However, in order to clarify the June 2013 opinion, the RO obtained a July 2013 addendum.  

In the July 2013 addendum it was noted that the June 2013 VA examiner was no longer with the VA Medical Center, and as such the addendum was provided by a new examiner after a thorough review of the claims files, including the June 2013 examination report.  The examiner opined that the Veteran's bilateral hearing loss was less likely than not related to his active service.  She reiterated the June 2013 examiner's finding that there were no complaints of hearing loss while on active service and noted that the Veteran had served as a light vehicle driver while on active service, and did not serve in combat, and therefore found that noise exposure could not be conceded.  She further noted that the Veteran had reported significant postservice occupational noise exposure while working in a refrigeration compressor plant and that a 2004 audiologic evaluation showed that he reported recreational noise exposure as a right handed hunter.  The examiner also found it significant that the Veteran's first documented complaint of hearing loss was not until 16 years following his separation from active service.  Therefore, she opined that his hearing loss was less likely than not related to his active service.  

There is no indication that the audiometric results reported in the VA audiological examination report and the VA treatment records are unreliable, or otherwise inadequate.  Thus, the above evidence establishes a diagnosis of a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.  

Because the medical evidence established that the Veteran has a current diagnosis of bilateral hearing loss disability, the Board will next consider whether the evidentiary record supports in-service incurrence.  

As stated above, the Veteran has asserted that he was exposed to noise while working as a light vehicle driver at Fort Knox, Kentucky.  The Board notes the Veteran is competent to report about the circumstances of his active service, and that he was exposed to noise therein.  Further, the Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances of his service as a light vehicle driver, and is therefore, deemed credible.  

As it has been established that the Veteran has a current diagnosis of bilateral hearing loss disability, and the Board has found credible the Veteran's statements that he was exposed to some degree of noise while active service, what remains for consideration is whether his current bilateral hearing loss disability is related to his active service, to include as due to noise trauma therein.  

As noted above, the Veteran's STRs are silent for complaints, findings, treatment, or diagnoses of hearing loss.  While there is no separation examination report of record, and no audiometric testing was conducted during active service, the Board notes that the Veteran has not asserted that his hearing loss disability began during active service.  [The Board notes that even if he had, hearing loss disability is established by audiometry and is beyond the scope of lay observation (although, the Veteran obviously is competent to observe he has difficulty hearing) See 38 C.F.R. § 3.385.]  Consequently, service connection for bilateral hearing loss on the basis that such disability became manifest in service and persisted is not warranted.  As there is no competent evidence that SNHL was manifested in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions (for SHNL as an organic disease of the nervous system).

What remains for consideration is whether or not the Veteran's current bilateral hearing loss disability could, in the absence of continuity since service, be somehow otherwise related to his service.  The only competent (medical) evidence in the record as to whether the Veteran's current hearing loss is related to his service are the reports from the June 2013 VA examination and the July 2013 VA addendum, when both examiners opined that the Veteran's current hearing loss was unrelated to his military service.  In explaining their opinions, the examiners noted that the Veteran's occupation during active service was unlikely to expose him to much noise.  It is noted, that while the Board has conceded that the Veteran was exposed to some degree of noise while on active service, neither the June nor the July 2013 VA examiner found it likely that he was exposed to significant noise trauma to cause his bilateral hearing loss disability.  Both examiners noted that he had a considerable history of postservice occupational noise exposure from working in a refrigeration compressor plant without hearing protection.  The July 2013 VA addendum examiner further noted that the Veteran had a history of recreational noise exposure from right sided hunting.  Both examiners found it significant that the Veteran had no documented complaints of hearing loss until August 1978, nearly 16 years following separation from active service.  As there are no contrary medical opinions of record, the Board finds the June and July 2013 VA examinations reports probative, and persuasive.  

The Veteran's expressions of his belief that his bilateral hearing loss disability is related to noise trauma in service do not merit any substantial probative value.  They are bare expressions of self-serving opinion, unaccompanied by any explanation of rationale.  They do not cite to supporting clinical data (or medical texts), and do not offer any explanation for the clinical data that weigh against his claim (notably, the lengthy postservice interval before the hearing loss became evident to him and/or was clinically documented, e.g.).  Significantly, whether hearing loss disability may, (in the absence of evidence of continuity, as here) be related to remote noise trauma is a medical question not capable of resolution by mere lay observation; it requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.)

In sum, there is no evidence that the Veteran complained of or was treated for hearing loss during active service; that the Veteran was diagnosed with bilateral hearing loss disability within one year of separation from active service; and the VA examiner has competently opined that the Veteran's current bilateral hearing loss disability is not etiologically related to his active service.  Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss disability.  Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002).

Service Connection for a Bilateral Knee Disability

The Veteran contends that he is entitled to service connection for a bilateral knee disability, as such was caused by his active service, to include his service-connected right foot disability.  

A review of the Veteran's STRs is silent for any complaints or treatment related to either of his knees.  

The Veteran was afforded a VA examination in April 1996.  At which time he reported an incident of swelling in his right knee during active service, but did not report any history of trauma.  He was noted to use a brace and had a wide elastic bandage/brace on his right knee.  X-ray of the bilateral knees noted no evidence of fracture or dislocation; bone density and architecture were normal; joint spaces were preserved without evidence of arthritic changes; and no soft tissue swelling or calcifications were seen.  The knees were noted to be normal on X-ray.  Unsupported by the X-ray findings, the examiner assessed degenerative joint disease (DJD) in the right knee.  

The Veteran was afforded another VA examination in October 1998.  It was noted that the Veteran walked with a cane and he denied any history of specific injury to either of his knees.  X-ray showed no roentgen evidence of any bone or joint abnormality and his knees were noted to be normal, bilaterally.  The examiner specifically noted that there were no degenerative changes present in either of the Veteran's knees at the time of examination, and no evidence of any such changes during his active service.  The examiner diagnosed chronic knee strain.  

VA treatment notes of record show that the Veteran received treatment for a variety of medical conditions, including bilateral knee pain.  In July 2009 the Veteran complained of bilateral knee pain.  It was noted that a 2004 X-ray showed mild osteopenia and osteoarthritis, bilaterally.  July 2009 X-ray revealed moderate arthritis in his knees, bilaterally.  The Veteran was prescribed tramadol for his pain.  In November 2009, the Veteran's knees were noted to not be an issue for him.  In March 2010 the Veteran was treated for an injury to his right lower leg sustained after pushing a truck and hearing a pop in his right leg.  He reported that his lower right leg was swollen afterward.  He denied any prior history of such injury, but reported a history of right knee arthritis.  He was assessed with right tennis leg.  There is no indication from the VA treatment notes of record that the Veteran's bilateral knee disability is related to his active service, to include his service-connected right foot disability.  

Private treatment records from Mercy Memorial Hospital show that the Veteran was given an X-ray of his left and right knee in July 2010, and another of his left knee in December 2010.  July 2010 X-ray of the left knee showed osteoarthritic changes without fracture or dislocation; July 2010 X-ray of the right knee showed advanced osteoarthritis without fracture or dislocation.  December 2010 X-ray of the left knee showed medial joint space osteoarthritis.  These records provide no opinion as to the etiology of the Veteran's bilateral knee disability.  

Pursuant to the May 2013 Board remand, the Veteran was afforded a VA examination of his bilateral knees in June 2013.  At that time, it was noted that during the pendency of his appeal, the Veteran had undergone bilateral total knee replacement surgery.  His left knee had been replaced in January 2012 and his right knee had been replaced in January 2013.  After examination and review of the claims files, the examiner opined, that the Veteran's bilateral knee disability, degenerative arthritis and subsequent bilateral knee replacements, was less likely than not related to his active service, to include his service-connected right foot disability.  The examiner explained that there was no evidence in the Veteran's STRs that he complained of or was treated for a knee condition of any kind.  Further, prior to his knee replacements, the Veteran had suffered from moderate degenerative changes, bilaterally, that were not noted until nearly 50 years after separation from active service.  There is no evidence that the Veteran suffered an event or injury in service that caused traumatic arthritis, and even so, traumatic arthritis would have manifested much earlier in his life and would have been much more severe by the time he started receiving treatment.  Additionally, an X-ray in 1998 showed that the Veteran's knees were normal, bilaterally, nearly 40 years after separation.  As such, the examiner opined that it was more likely that the degenerative changes in the Veteran's knees were age related.  

Further, the June 2013 examiner opined that it was less likely than not that the Veteran's service-connected right foot disability permanently aggravated the Veteran's bilateral knee disability.  He explained that if this had been the case, the Veteran would have had more severe arthritis in his left knee, as he would have favored his right side to account for his right foot disability, which would have put greater strain on his left knee.  However, the examiner noted that the July 2009 X-rays showed moderate arthritis in both knees, which indicated that any gait change caused by his right foot disability was not affecting his bilateral knee disability. 

As the June 2013 examiner conducted a complete review of the claims files, and his opinions were accompanied by rationale, the Board finds them adequate.  As there are no contrary medical opinions of record, the Board also finds them persuasive evidence in this matter.  

Upon review of the evidence, the Board finds that service connection for a bilateral knee disability, to include as secondary to a service-connected right foot disability, is not warranted.  In this regard, the Board finds that there is no evidence suggesting that the Veteran sustained an injury to either knee during active service.  Further, the first evidence of treatment for a bilateral knee disability is April 1996, at which time an X-ray showed normal knees, bilaterally, even though the April 1996 VA examiner noted degenerative changes in the right knee.  The first evidence, per X-ray, of arthritis of either knee is the 2004 VA X-ray noted above, which showed osteoarthritis bilaterally (nearly 42 years following separation from active service).  Consequently, service connection for a bilateral knee disability on the basis that such disability became manifest in service and persisted is not warranted.  As there is no competent evidence that arthritis of the knees was manifested in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions (for arthritis).

What remains for consideration is whether or not the Veteran's current bilateral knee disability could, in the absence of continuity since service, be somehow otherwise related to his service, to include his service-connected right foot disability.  The only competent (medical) evidence in the record as to whether the Veteran's current bilateral knee disability is related to his service is the report from the June 2013 VA examination, when the examiner opined that the Veteran's bilateral knee disability was unrelated to his active service, to include his service-connected right foot disability.  The examiner explained that there was no evidence of degenerative changes until nearly 50 years following the Veteran's separation from active service and there was no evidence in the Veteran's STRs that he was ever treated for an injury to either of his knees.  Further, the examiner explained, that if the Veteran's right foot disability had aggravated his bilateral knee disability, there would have been evidence of an altered gait causing more severe degenerative changes in the Veteran's left knee; but this was not the case.  As such, the examiner opined that the Veteran's bilateral knee disability was more likely age related.  As noted above, the Board has found this opinion to be persuasive.  

The Board acknowledges the Veteran's assertions that his bilateral knee disability is related to his service, to include his service-connected right foot disability.  They are bare expressions of self-serving opinion, unaccompanied by any explanation of rationale.  They do not cite to supporting clinical data (or medical texts), and do not offer any explanation for the clinical data that weigh against his claim (notably, the lengthy postservice interval before the Veteran sought treatment for his bilateral knee disability symptoms, e.g.).  As noted above, whether a disability, like his bilateral knee disability may be related to another condition is a medical question not capable of resolution by mere lay observation; it requires medical expertise.  See Jandreau, 492 at 1377 (2007).

In sum, there is no evidence that the Veteran was diagnosed with arthritis in either knee within one year of separation from active service and the VA examiner has competently opined that the Veteran's current bilateral knee disability is not etiologically related to his active service, to include his service-connected right foot disability.  Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right foot disability.  Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002).









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ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.

Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right foot disability is denied.  


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs