Citation Nr: 1334755 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-06 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for left knee disorder. 3. Entitlement to service connection for right knee disorder. 4. Entitlement to service connection for bilateral foot disorder, including plantar fasciitis with heel spurs. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO; a transcript of that hearing has been associated with the record. In May 2013, the Board remanded the appeal to obtain additional treatment records and to provide examinations concerning the Veteran's audiological and left knee disabilities. Subsequent to the May 2013 remand, the claims file was converted from a paper file into an electronic file, and stored in the Veterans Benefits Management System (VBMS). The VBMS file has been reviewed in the adjudication of this appeal. In addition to the VBMS claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. As discussed in the May 2013 remand, the issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for bilateral foot disorder, including plantar fasciitis with heel spurs is addressed in the REMAND portion of this decision, and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss is not shown to be the result of in-service noise exposure, and a sensorineural hearing loss was not compensably disabling within the first year following separation from active duty. 2. A left knee disorder is not shown to be the result of any incident of the Veteran's active military service, and left knee arthritis was not compensably disabling within the first year following separation from active duty. 3. The Veteran does not currently have a right knee disability. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was neither incurred nor aggravated by active military service, nor may a sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. A left knee disability was not incurred or aggravated during active military service, and left knee arthritis is not presumed to have been incurred during service. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. A right knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, the Veteran was sent a letter in September 2006 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. There are no outstanding medical records that have been identified. VA has complied with the directives included in the May 2013 remand, including the provision of audiological and orthopedic examinations. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran's statements in support of the claim are of record, including testimony provided at a September 2012 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his service connection claims and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). With chronic disease (as defined in 38 C.F.R. § 3.309(a)) shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including a sensorineural hearing loss (other organic diseases of the nervous system) and arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Hearing Loss The Veteran has both a current bilateral hearing loss disability, see 38 C.F.R. § 3.385 (2013), and evidence of in-service acoustical trauma (exposure to hazardous noise levels while serving in an artillery unit). Thus, he meets the first and second prongs of service connection for bilateral hearing loss. Holton, 557 F.3d at 1366. The remaining question, therefore, is whether there is a nexus between the appellant's in-service acoustic trauma and his current disability. Id. At his September 2012 hearing, the Veteran reported in-service acoustic trauma due to artillery noise. He acknowledged that his hearing loss did not begin during service, but he provided contradictory reports as to its onset. He initially reported that he began to have trouble with his hearing "right after [he] got out of service." Thereafter, he indicated that he did not begin to notice his hearing loss until "the last eight or nine years or so," or "ten years ago." The first time he saw a doctor for a hearing loss was "about ten years" prior to the September 2012 Travel Board hearing. According to his January 1971 separation examination, the Veteran had normal hearing at the time he left active duty. VA provided the Veteran with an audiological examination in March 2007. That examiner noted a history of in-service noise exposure to weapons fire "in Vietnam" (sic) [note: as discussed in the prior remand, the Veteran neither contends nor does the record show that he served in the Republic of Vietnam. His personnel records do show service with field artillery units.] Per the examiner, the appellant reported post-service noise exposure, including working as a truck driver for 3 years without hearing protection, as a carpenter for 12 years without hearing protection, and as a cement truck driver (in which position, the Board notes, the Veteran continues to be employed, per his September 2012 testimony) without hearing protection. He also participated in hunting and recreational shooting without using any hearing protection. He has used power tools with hearing protection. The March 2007 examiner diagnosed a mixed sensorineural and conductive hearing loss. As to the etiology of his bilateral hearing loss disorder, the examiner did not provide an opinion, but noted that "hearing loss was noticeable following military service, however, [the Veteran] has been exposed to noise in his occupational following the military." The Veteran submitted an October 2012 private audiological report. Per that report, the Veteran reported a history of military-related noise exposure. Based on his report of noise exposure, as well as his indication concerning the timing of the onset of tinnitus [note: the examiner did not specify what that timing was], it was the audiologist's opinion that it was at least as likely as not that the current hearing loss disability was due to acoustic trauma sustained in service VA provided a second audiological examination in July 2013. At that time, the examiner diagnosed the Veteran with a bilateral sensorineural hearing loss in the 500-4000 Hertz range, as well as the 6000 Hertz or higher frequency range. The examiner reviewed the Veteran's noise exposure history, including both in-service and post-service noise exposure, and acknowledged a hazardous level of noise exposure in the military. He also discussed the October 2012 private audiological private audiological report indicating a nexus between service noise exposure and hearing loss. The examiner opined that the current hearing loss disability was unrelated to the in-service noise exposure, noting that the Veteran's hearing thresholds were normal for all tested frequencies for both ears at exit from the military, and that no significant threshold shifts were observed between his Airborne application examination and his separation examination. In addressing the October 2012 private audiological opinion, the examiner noted the Board's finding (from the May 2013 remand) that the private opinion failed to address the effect of the Veteran's post-service noise exposure on his hearing loss. As discussed in the May 2013 remand, the Board does not find the May 2007 VA examination report, or the October 2012 private audiological opinion, to be probative. Both opinions relied on inaccurate factual bases to reach their conclusions. Nieves-Rodriguez, 22 Vet. App. at 302. The October 2012 private audiological opinion does not appear to be based on a complete history of the Veteran's noise exposure, as it did not address his post-service occupational and recreational noise exposure. Similarly, the March 2007 VA audiological examination report reflects that the Veteran had noise exposure in Vietnam, which is not the case. The Board finds the July 2013 audiological report and opinion to be the most probative as to the relationship between the current disability and the appellant's in-service noise exposure. See Willis, 1 Vet. App. at 70. The examiner cited an accurate noise exposure history for the Veteran, and specifically relied on the appellant's normal and unchanged auditory thresholds at the time of his separation. The Board finds that the examiner's opinion is fully articulated, factually accurate, and based on sound reasoning. To the extent that the Veteran attributes his hearing loss to his in-service noise exposure (see September 2006 Statement in Support of Claim; September 2012 Travel Board hearing testimony) such testimony is not competent for purposes of granting service connection. The Veteran has a long history of noise exposure, both during and after service, but he does not have the training or expertise to attribute his hearing loss to a particular source of acoustic trauma. Jandreau, 492 F.3d at 1376-77. The Board also finds that there is no credible evidence that the Veteran's hearing loss was compensably disabling within the first year following the appellant's release from active duty. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Although the Veteran testified that his hearing loss began immediately after service, he later indicated that he did not actually notice hearing loss until, at most, ten years prior to his September 2012 Travel Board hearing. That ten-year time frame is consistent with his testimony that he first sought medical treatment for his hearing about ten years prior to the hearing. Thus, the discrepancy in his testimony in this regard discredits his statement that his hearing loss began immediately after service. There is no other evidence to suggest that his hearing loss began in the first post-service year. The Board concludes that there is no competent or credible evidence that the Veteran's current bilateral hearing loss disability is etiologically related to service. See Holton, 557 F.3d at 1366. Likewise, there is no credible evidence that the hearing loss disability began during the first post-service year. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss, therefore, is not warranted. Left Knee Disability The Veteran has a current left knee disability, a history of in-service treatment for knee pain, as well as a history of parachuting while in service. He meets the first two criteria for service connection. See Holton, 557 F.3d at 1366. The remaining question is whether there is a competent nexus between the in-service knee pain/trauma, and the current disability. Concerning his knee disabilities, the Veteran stated in September 2006 that his problems are the result of his time in jump school and other rigors of military training. The Veteran's service treatment records show treatment for knee pain, but at the time of his January 1971 separation examination, it was determined that his musculoskeletal system (including specifically his lower extremities) was normal. Similarly, he denied knee trouble on his associated medical history report. At his September 2012 hearing, he testified that his knee problems began about fourteen or fifteen years prior. He denied hurting his knees or having problems with his knees in the military, but said that there was some jarring of the knees when he hit the ground at about 30 miles per hour after a parachute jump. He reportedly completed more than 50 jumps. An August 2003 report from Dr. D.A.G. indicated that the Veteran came in with a "new problem." The appellant complained of left knee pain, reporting a two-week history with no real injury. Dr. D.A.G. diagnosed the Veteran with left knee arthrosis. A September 2003 left knee MRI report from Dr. B.G. indicated that the Veteran reported "no known [knee] injury," but that his knee had been giving out for three or four weeks. Dr. B.G. diagnosed the Veteran with chondromalacia, degenerative fraying of the meniscus without tear, and degenerative changes of the anterior cruciate ligament without a discreet tear. The doctor did not provide an etiology opinion. An October 2012 private treatment note from Dr. D.A.G. indicated that he "suspect[ed] a good bit of [the appellant's] arthritis is a result of his time in the military where he was jumping out of airplanes as a potential etiology" [sic]. VA obtained a left knee orthopedic examination in July 2013. The examiner diagnosed left knee degenerative joint disease. According to the Veteran, the pain started in the late 1980s. He stated that he felt his time as a parachutist in the Army, as well as the running and jumping involved in his training, caused his problem. In jump school he had shin splints in both legs. He had shin splints during service which got better, but that his left knee started bothering after he got out. He reported that he began receiving orthopaedic management for his knee in 2003. After service, the Veteran went into construction work off and on for 25 years. Thereafter, he became a truck driver, which continues to the present. The July 2013 examiner noted the December 1968 service record of treatment for bilateral knee pain with a normal examination. Despite the in-service knee pain, the Veteran did not seek treatment for his knee pain until 2003, and in the interim he worked in construction and then drove trucks for over 30 years. The examiner opined that his post-service work involved stressful occupations requiring him to be on his feet extensively. Considering the in-service and post-service history, as well as the long period of time between separation and his first treatment for knee pain, the examiner opined that there was no nexus connecting service activities to his current knee problem, and that it was less likely than not that his current knee problem was related to service. The Board finds that there is insufficient evidence of a nexus between the current left knee disability and any event or injury during the Veteran's military service. The Veteran is not competent to link his current disability to the training he did during service, especially as such a long period of time elapsed between the training and the onset of his pain. Jandreau, 492 F.3d at 1376-77. Although the October 2012 report indicated that in-service events constituted a "potential etiology," such an opinion is speculative, and is insufficient upon which to base a grant of service connection. Nieves-Rodriguez, 22 Vet. App. at 302. The one opinion of record that is probative of the matter is that of the July 2013 VA examiner, who opined that the current disability was unrelated to the Veteran's service. Id. That examiner fully supported his opinion with a complete rationale, and based the opinion on an accurate factual history. The Board also observes that there is no evidence that any arthritis was diagnosed within the first post-service year. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As such, without a nexus between the current disability and the in-service training and resulting knee pain, service connection is not warranted. See Holton, 557 F.3d at 1366. Right Knee Disability With regard to the claimed right knee disability, the Board acknowledges that the Veteran had treatment for shin splints of the right leg, right leg pain, and bilateral knee pain. There is no evidence, however, of a current right knee disability. Without a current knee disability, service connection is not warranted. Id. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for left knee disorder is denied. Entitlement to service connection for right knee disorder is denied. REMAND The Veteran's claim of entitlement to service connection for bilateral foot disorder, including plantar fasciitis with heel spurs, must be remanded for an examination. Upon further review of the claims file, the Board notes that in a 1999 treatment note, prior to the appellant's claim for service connection, he informed a treatment provider that he had experienced painful heels for the prior "45 years." While that timeframe appears inaccurate, as there is no indication that he had heel pain prior to entering service, considering that facts that (1) he has a current bilateral foot disability, (2) he received treatment for heel and foot pain in service, (3) he went through jump school, completing over 50 jumps, and (4) prior to submitting the claim for service connection, he informed a medical provider of a long history of foot pain, the Board finds that there is a sufficient suggestion that his current disability could be related to his military service that a new examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that where there is evidence of a current disability, and an indication that the current disability may be related to an event or injury in service, but insufficient competent evidence on file to make a decision on the claim, an examination is warranted). Prior to that examination, VA should obtain the Veteran's service personnel record to document his jump history, to include his DA Form 1307, Individual Jump Record. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's complete service personnel record, to include his DA Form 1307, Individual Jump Record. If the RO cannot locate this record, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After all records have been obtained, schedule the Veteran for a VA orthopedic examination to determine the etiology of any diagnosed bilateral foot disorder. All necessary tests should be conducted. Access to the VBMS paperless claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review; the examiner must indicate that he or she accomplished such a review. The examiner must identify all diagnosed foot and/or heel disorders. Then, with respect to any diagnosed foot/heel disorder, the examiner is to opine whether it is at least as likely as not that the disorder had its onset during the Veteran's active military service or is otherwise related to such service or events therein. In rendering this opinion, the examiner must consider and discuss the Veteran's assertions that he made multiple parachute jumps and landings during service as well as service records that confirm receipt of the Parachute Badge. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why the cause of any diagnosed foot/heel disorder is unknowable. A complete rationale must accompany each opinion offered. 3. After the development requested has been completed, the AMC/RO should review the examination reports to ensure that they are in complete compliance with the directives of this remand. The AMC/RO must ensure that the examiners documented his or her consideration of VBMS and Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any of the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issue on appeal. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs