Citation Nr: 1334971	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  09-04 305	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for a left knee disability.

3.  Entitlement to service connection for a right knee disability.


REPRESENTATION

The Veteran represented by:    Texas Veterans Commission


ATTORNEY FOR THE BOARD

Russell P. Veldenz,  Counsel



INTRODUCTION

The Veteran served on active duty from July 1967 to September 1969, to include combat service in Vietnam. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In May 2011, the Veteran did not appear at a hearing before the Board.  Without good cause shown, the request for the hearing is deemed withdrawn.  38 C.F.R. § 20.704(d).

In August 2011, August 2012, and March 2013, the Board remanded the case to the RO for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board notes the Veteran filed a single claim for service connection for bilateral knee disability.  As will be discussed below, the Veteran was treated for left knee symptoms, but not right knee symptoms, in service, and a different legal theory may apply to each knee.  Furthermore, there is evidence in service that the Veteran had Osgood- Schlatters disease of the left knee and currently has degenerative joint disease in both knees.  Therefore, the Board has separately addressed service connection for each knee as set forth on the first page of the decision.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him).  

In a rating decision dated in March 23, the RO granted service connection for the claim for service connection for tinnitus and assigned a 10 percent rating.  The Veteran has not initiated an appeal of the rating.  The Veteran does have the remainder of the one-year period from the date of notification, March 22, 2013, to file a notice of disagreement to initiate an appeal of the claim.


FINDINGS OF FACT

1.  Service treatment records do not reflect evidence or symptoms of left ear hearing loss in service.  

2. The Veteran's left ear hearing loss did not manifest to a compensable degree within one year after separation from service. 

3. The Veteran's left ear hearing loss is not causally or etiologically related to the noise exposure during active service.

4.  The Veteran currently does not have any residuals or symptoms of Osgood- Schlatter's disease.

5.  The Veteran was not diagnosed or treated for degenerative joint disease of the left knee, and degenerative joint disease of the left knee was not manifested to a compensable degree within one year from the date of separation from service; and is unrelated to an injury or disease or event in service, including diagnosis and treatment of Osgood- Schlatter's disease.

6.  The Veteran was not diagnosed or treated for degenerative joint disease of the right knee, and degenerative joint disease of the right knee was not manifested to a compensable degree within one year from the date of separation from service; and is unrelated to an injury or disease or event in service.






CONCLUSIONS OF LAW

1.  The criteria for service connection for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013).

2.  The criteria for service connection for left knee degenerative joint disease have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

3.  The criteria for service connection for right knee degenerative joint disease have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre- adjudication VCAA notice by letter, dated in April 2007.  The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. 

The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment).  Further VCAA notice is not required.


Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  The RO has obtained service treatment records, VA records, reports from a private medical caregiver, and afforded the Veteran a VA examination in May 2007, November 2011, November 2012 and July 2013 for the claim for service connection for left ear hearing loss and March 2008, November 2011, and November 2012 for the claims for service connection for knee disabilities.  

The report of the VA examination included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability.  Therefore, the Board concludes that the VA examination is adequate.  38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 

General Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110, 38 C.F.R. § 3.303.

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b).  The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to chronic diseases listed in § 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  Osteoarthritis and sensorineural hearing loss, as an organic disease of the nervous system, are both listed under § 3.309 as a chronic disease.

The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for osteoarthritis or an organic disease of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

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).

Evidentiary standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

The Veteran's Lay Evidence

As noted, as a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses.  38 C.F.R. § 3.159 (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.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses).  Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible).  The Board thus finds that the Veteran is competent to describe his symptoms in service and thereafter.

Although the Veteran is competent to describe symptoms of arthritis or hearing loss, unless the diagnosis is capable of lay observation, the determination as to the presence or diagnosis of such a disability is medical in nature and competent medical evidence is required to substantiate the claim.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  The Veteran is not asserting any condition that is capable of lay observation.  See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a 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); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition).

Furthermore, for the claims before the Board, a diagnosis cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses.  As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests, such as X-rays, audiometric testing, and laboratory tests, which requires medical knowledge.  No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis.  Therefore, the Veteran's assertion or opinion that he has a given diagnosis of hearing loss or arthritis in either knee and the relationship of a diagnosis or symptom to service is not competent evidence.  To this extent his statements and testimony are not admissible as evidence of the diagnosis of a disability.  It is the opinion of a layman and not competent medical evidence of a diagnosis by a medical professional.  The Veteran's discussion of his symptoms over the years certainly is important, however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional.

To sum up the foregoing, the Board will consider the Veteran's testimony as it relates to the onset and continued presence of his symptoms.  Such lay evidence is relevant and competent.  To the extent that the Veteran is offering his own opinion as to what disability is causing the symptoms, or the relationship of the disability to service, the Board has disregarded the Veteran's opinions in its analysis.  

Claim for Service Connection for Left Ear Hearing Loss

The Board notes initially that it denied service connection for the right ear in a decision dated in August 2011.  Nevertheless, the Board will set forth audiological results for both ears to fully explain and place in context the opinions reached in VA examinations.  

Service treatment records from July 24, 1967 through August 22, 1969, are negative for treatment, diagnosis, or consultation regarding a hearing loss.  At entrance in July 1967, the puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
5
LEFT
0
0
0
0
5

At separation, the Veteran was examined in August 1969, and the Veteran's hearing was evaluated as normal by the whispered voice test (whisper test).

The next testing of the Veteran's hearing occurred at a VA examination in May 2007.  The Veteran reported he was a mortar man in Vietnam for one year; after separation, he worked as a welder, electrician, truck driver, and as a police officer.   He did not have any recreational noise exposure.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
35
15
20
20
LEFT
15
35
10
15
40

The pure tone averages were 23 decibels for the right ear and 25 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 100 percent bilaterally.  The examiner concluded the Veteran had only a very minor hearing loss in one high frequency for the left ear.  The right ear did not display an impaired hearing loss disability, see 38 C.F.R. § 3.385.   Based upon those findings, normal speech discrimination test and the pure tone threshold average, 37 years since separation from service, the occupational history in several occupations with noise exposure, and the whisper test administered at separation, the examiner could not provide an opinion whether the Veteran's left ear hearing loss was due to service without resorting to speculation.   The configuration of hearing loss was noted not to be typical for noise induced hearing loss.  

In July 2008, the Veteran was noted to have a mild sensorineural hearing loss in the right ear at 1,000 Hertz.  The left ear had mild to moderate hearing loss.  Both ears had excellent speech recognition ability.  

In November 2011 (with an addendum in December 2011), the Veteran was provided a VA examination and the pure tone thresholds, in decibels, were as follows:  







HERTZ



500
1000
2000
3000
4000
RIGHT
30
50
35
30
30
LEFT
30
45
30
25
45

The pure tone averages were 36 decibels for the right ear and 36 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 92 percent bilaterally.  

The examiner noted that upon entrance, the Veteran had normal hearing and at separation, only a (15/15) whisper test was completed.  Whisper tests do not provide frequency or intensity specific information.  The examiner also noted prior testing in 2007 and 2008 demonstrated the right ear was within normal limits in the high frequencies and left ear had a very mild hearing loss at one high frequency.  The examiner stated this configuration of hearing loss is not typical of noise induced hearing loss.  The Veteran also has a history of significant occupational noise exposure as a welder and 20 years as a truck driver.  The examiner stated it was not possible to comment on any shift in hearing acuity during his 2 years of active duty service, without resorting to speculation.  

In November 2012, the Veteran was provided another VA examination and the pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
20
45
25
35
35
LEFT
20
45
35
25
50

The pure tone averages were 35 decibels for the right ear and 39 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 92 percent bilaterally.  

In December 2012 addendum, the examiner expanded upon his report that after review of service medical records, personal interview and audiometric testing, the examiner could not form an opinion regarding service connection for hearing loss because it would be based on speculation due to the whisper test at discharge.  The whisper test did not provide frequency and intensity to provide the specific information needed for a conclusive opinion. 

In April 2013, the VA examiner from the November 2012 VA examination prepared a second addendum adding that a whispered voice test does not provide any frequency specific information.  Without formal audiological testing at separation or any records regarding hearing after separation, it cannot be determined if any significant threshold shifts occurred while the Veteran was on active duty.  The examiner again stated based upon the available evidence, an opinion regarding hearing loss cannot be rendered without resorting to speculation.  

In July 2013, the Veteran was provided a third VA examination and the pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
20
35
40
LEFT
35
45
30
25
50
  
The pure tone averages were 34 decibels for the right ear and 38 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 96 percent bilaterally.  The Veteran reported 25 years of occupational noise exposure as a truck driver.  He stated everything is noisy with no hearing protection worn.  He also thinks that his hearing loss fluctuates,

The examiner stated that very limited information can be gleaned with a whispered voice test.  There apparently are no VA or private VA records from 1969 to the first VA examination in 2007.  All VA audiological tests demonstrate unusual configurations.  They are atypical for noise induced hearing loss which is typically revealed through the greatest loss in the 3000-6000 Hz range and the results are atypical of presbycusis which is typically revealed at the greatest loss at 8000 Hz and spreading through the adjacent high frequencies.  The various hearing tests also reveal fluctuation which is atypical of noise induced hearing loss.  Based upon the foregoing, including the lack of demonstrable evidence of hearing loss between 1969 and 2007, it was the opinion of the VA examiner that the present left ear hearing loss is not at least as likely caused by or the result of military noise exposure.

Analysis

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

After a review of the evidence, the Board finds that the Veteran did not have a left ear hearing loss in service, or chronic symptoms of a left ear hearing loss in service.  The Veteran's service treatment records do not show any complaints, symptoms, diagnosis, or treatment of the left ear, and shows that he was not treated or diagnosed with a left ear hearing loss during service.  At the service separation examination, the Veteran denied any history or current complaints of the left ear including hearing loss.  The whispered voice test was normal.  On the basis of the service treatment records, in the absence of any clinical finding or diagnosis or even complaints or symptoms in service, a left ear hearing loss is not affirmatively shown to have had onset during service.  38 C.F.R. § 3.303(a).  

That finding, however, does not preclude a finding of service connection for a left ear hearing loss if all of the evidence, including that pertinent to service establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As noted above, sensorineural hearing loss is a chronic disease listed in 38 C.F.R. § 3.309.  Therefore, if there is competent and credible evidence of continuity of symptomatology since service, entitlement to service connection would also be warranted.  38 C.F.R. § 3.303(b), see also Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013).

It is not clear from the record whether the Veteran is asserting he has had a left ear hearing loss since service.  The Veteran stated in his substantive appeal that he had problems while in the military.  To the extent that the Veteran asserts continuity of symptoms since service, the Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence).

In this instance, there are no in service treatment records of the Veteran for a left ear hearing loss.  Moreover, the evidence does not establish continuity of a left ear hearing loss since service.  Instead, the evidence establishes an onset of symptoms and disability well after service.  The available evidence demonstrates the first time he sought treatment was contemporaneous with the filing of his claim in March 2007.

In the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence, which weighs against the claim).  The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Here, the lapse of time from separation in July 1967 to the first notation of complaints or treatment of the left ear hearing loss against the Veteran's assertions of continuous symptoms.
The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible).  Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are not credible and less probative than the negative evidence, which interrupts continuity. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). 

Thus, the Board recognizes that documentation of an injury or a left ear hearing loss by audiological test is not required, Buchanan, supra, but rather, the Board has weighed the negative evidence of the in service treating medical records and subsequent treating records against the Veteran's statements that an injury, disease, or event in service has caused him problems of hearing in the left ear since separation to the present.  The Veteran's post-service medical records are negative for complaints, symptoms, treatment, findings, or diagnoses for 40 years following separation.  Furthermore, as noted, the VA examiner in July 2013 determined that the picture of the Veteran's a left ear hearing loss is not consistent with noise induced hearing loss.

For this reason, the preponderance of the evidence is against the claim of service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b).  The Board has thus determined that while the Veteran is competent to provide lay evidence concerning the onset of his left ear hearing loss, the Veteran is not as credible as the documented medical evidence establishes that the onset of symptomatology occurred after service.  The Board has therefore assigned little weight to the Veteran's assertions of continuity of symptoms since service.  

The Board also finds that service connection cannot be granted on a presumptive basis as the evidence does not establish that the disability manifested itself to a compensable degree within one year of discharge from service.  Left ear hearing loss is first noted in 2007 and well beyond the one-year presumptive period for manifestation of degenerative as a presumptive chronic disease under 38 U.S.C.A. §§ 1112, 1131; 38 C.F.R. §§ 3.307, 3.309

As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or causation, or credible evidence of continuity of symptomatology, the Board looks to the medical evidence.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

As for the Veteran describing a contemporaneous medical diagnosis and symptoms described by the Veteran that later support a diagnosis by a medical professional, the Veteran has not provided any evidence that his current left ear hearing loss is related to service.

The only competent medical evidence is the opinion of the VA examiner in May 2013.  The examiner is qualified by education, training, or experience to diagnosis a medical condition and to offer an opinion on causation.  With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -03 (2008).

The Board is aware that prior VA examinations and reports determined that an opinion whether the left ear hearing loss is related to service is speculative but those opinions are entitled to little probative value.  See Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical opinions which are speculative, general or inconclusive in nature cannot support a claim).

The Board finds the unfavorable medical opinion of the May 2013 VA examiner is well reasoned, detailed, provides a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms.  The examiner acknowledged the Veteran's evidence of noise exposure in service.  The examiner noted, however, the unusual configurations of hearing loss in both ears for all audiological tests since 2007 which are not consistent with noise induced hearing loss or even age related (presbycusis) hearing loss  The VA examiner concluded it was less likely than not the Veteran's left ear hearing loss was related to service.  The examiner thus took into account all of the medical evidence of record and relied upon and applied medical knowledge to form the opinion.  The examiner set forth an accurate historical history with medical details taken from the Veteran's claims file, which renders it especially probative.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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). 

Being based on a complete review of the record, these opinions also take into account the Veteran's own assertions, but the examiner has determined the Veteran's assertions do not establish a relationship to service.  The Board therefore finds that the opinion of the July 2013 VA examiner as persuasive evidence against the claim for service connection for a left ear hearing loss.  As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current left ear hearing loss or the relationship to service, which opposes, rather than supports, the claim.

Accordingly, the weight of the medical evidence is against an association or link between the left ear hearing loss and service.  The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).



Claim for Service Connection for Left and Right Knee Disabilities

In the entrance examination, the Veteran did not report any prior knee condition and physical examination of the knees was normal.  

In a service treatment record, dated in September 1967, the Veteran complained of left knee pain.  He stated that he had injured the left knee 3 years prior to enlistment.  The impression was a mild lateral collateral ligament strain.  

In October 1968, an orthopedic consult noted a past history of repeated trauma to the left knee and was seen recently with residuals of Osgood- Schlatter's disease of the left knee.  He was placed in a cast for two weeks with some improvement but localized tenderness and quadriceps atrophy were present.  An X-ray showed a fragment of the tibial tubercle.  The diagnosis was symptomatic Osgood-Schlatter's disease.

In November 1968, the Veteran was hospitalized at Great Lakes Naval Hospital for further evaluation.  He gave a history of injury at age 13 to the left knee.  He reported difficulties since that time.  The right knee did not bother him.  Three months prior to admission to the Naval Hospital, he tripped and fell.  He was treated with a cast without relief of tenderness or pain and still complained of tenderness of the left tibial tuberosity, including pain if he is on his legs a long time and while walking.  The examination demonstrated bilateral tibial tubercles with tenderness on the left knee tibial tuberosity.  There were no other signs and the Veteran had full range of motion bilaterally.  The diagnosis was Osgood-Schlatter's disease of the left tibial tuberosity, which was noted as existing prior to enlistment.  

In March 1969, the Veteran reported he had a diagnosis of Osgood-Schlatter's disease for both knees but the left was worse than the right.  

The separation examination in August 1969 discharge examination showed normal lower extremities.  Nothing was mentioned regarding the diagnosis and treatment of the left knee for Osgood Schlatter's disease.  

A VA psychiatric examination in May 2007 noted the Veteran had outpatient surgery on his knee in 1987 (right or left knee was not specified).  

A March 2008 radiology report showed narrowing to the medial compartment of the right knee with peripheral osteophytic spurring. There was no evidence of a joint effusion or loose body. The patella showed no lateral subluxation or tilt.  X-rays of the left knee showed the joint spaces to be well maintained without narrowing or osteophytic spurring.  

At VA examination in March 2008, only the left knee was examined.  The left knee range of motion was from 0 to 140 degrees with pain throughout the range but there were no signs of instability.  The Veteran was tender in the medial and lateral joint line over the tibia tubercle, which was very prominent (consistent with a past history of Osgood-Schlatter's diseases).  The diagnosis was left knee arthralgia without evidence of degenerative changes and with a previous history of Osgood-Schlatter's disease.  The examiner also stated the Veteran's current condition was not caused by or aggravated by service as Osgood-Schlatter's disease resolves without causing any chronic problems.  Osgood-Schlatter's disease is a developmental anomaly of the tibial tubercle and resolves after complete fusion of the epiphyseal plates, at about age 18.  This would not have caused any internal derangement of the left knee and has not been known to cause any type of chronic knee problems.  The Veteran's current disability was a result of the natural aging process, musculoskeletal deconditioning due to physical inactivity, and genetic predisposition.   

In a VA examination in November 2011, the Veteran reported during his military service (Vietnam era), he was evaluated by for bilateral knee condition.  The report stated he applied to an early release from service but he was unable to apply for disability.   Since his discharge, he has had bilateral knee pain.  He denies any medical care after discharge, until about 30 years ago, when he underwent a right knee arthroscopic surgery for a meniscus injury.  He denied any other accident, trauma or fall that affected his knees.  His right knee range of motion was from 0 to 100 degrees and his left knee range of motion was 0 to 120 degrees.  The left knee did not show any signs of instability.  The right knee had a 1 + medial-lateral instability. 

X-rays demonstrated the left knee with well maintained joint spaces and no narrowing, osteophytic spurring, evidence of a loose body, or joint effusion.  Standing images of the right knee shows narrowing to the medial compartment with peripheral osteophytic spurring.  The patellae showed no lateral subluxation or tilt.  There was no evidence of a joint effusion or loose body.  

The examiner concluded that it was less likely than not that the Veteran's knee disabilities were caused by or related to service.  There is evidence of a left knee, but not right knee Osgood Schlatter's disease and medical treatment in service.  This condition is a developmental process over the tibial tuberosity of the knee and no specific cause has been identified to predispose a person to this condition.  The VA expert stated the Veteran had the condition prior to service and his pain got worse during the service, but that increased pain is the normal process of the condition and resolves with proper treatment.  At the time of the 2011 VA examination, his worse knee is the right one, but there is no evidence of injury or medical care during his military service to the right knee.  In the examiner's opinion, it's more likely that his right knee condition (degenerative joint disease and meniscus tear) are related to his job as truck driver than a residual injury during service or secondary to the left knee condition.  

In a VA examination in November 2012, the Veteran reported swelling in his right knee associated with a constant, dull aching pain in the joint line of the knee.  He also reported a dull aching pain sensation in his left knee without associated swelling.  The Veteran worked as a truck driver and his knees bother him when sitting for long periods while driving and climbing in and out of his truck cab. He reported an arthroscopy of his right knee for a torn meniscus.  He initially injured his knees while on active duty during a patrol in the Vietnam and playing baseball while on active duty.  The Veteran asserted he was eventually released from the United States Marine Corps due to his knees.  Both knees had a range of motion from 5 degrees to 130 degrees.  A 1 + medial/lateral instability was noted bilaterally.  The examiner reviewed X-rays demonstrating old Osgood-Schlatter's disease bilaterally. 

The VA examiner concluded it was less likely than not the Veteran's knee disabilities were related to service and the current bilateral knee osteoarthritis is more likely than not secondary to the effects of aging, genetics, musculoskeletal deconditioning, and obesity.  Complications of Osgood-Schlatter disease are rare with the VA examiner emphasizing the word "rare."  Medical literature reports on complications of Osgood- Schlatter disease, with or without treatment, included subluxation of the patella, patella alta, nonunion of the bony fragment to the tibia, premature fusion of the anterior part of the epiphysis with resulting genu recurvatum, patellar tendon avulsion, pseudarthrosis between the patellar tendon ossicle and the tibial tuberosity, avulsion fractures of the tibial tuberosity.  The most commonly reported complication is angular deformity and leg-length discrepancy.  The examiner noted that the Veteran had none of these complications or sequelae and due to the rarity of these complications, he would be less likely than not to have any of them.  His current knee conditions are more likely than not due to the effects of aging, musculoskeletal deconditioning, and a genetic propensity to developing degenerative conditions. 

In May 2013, the examiner prepared an addendum addressing the internet article submitted by the Veteran stating that osteoarthritis is a complication of Osgood- Schlatter's disease.  The examiner stated the source of the article, WebMD, is not considered a recognized source of legitimate medical information and the article does not address the most likely etiologic factors for degenerative joint disease in the knee joint, which as the examiner noted are present in the Veteran: aging, injury, genetics, and obesity.   

Analysis

Initially, the Board notes there is some evidence that the Veteran has a condition, Osgood- Schlatter's disease, which may have pre-existed service.  Osgood- Schlatter's disease of the left knee was diagnosed in service and the service treatment records note it as existing prior to enlistment.  There is other evidence that it is a developmental disease usually occurring in the teen years but may occur later in life.  A Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service except for conditions noted on the entrance examination.  38 U.S.C.A. § 1111.  The presumption of soundness is rebuttal by clear and unmistakable evidence that the disability preexisted service and was not aggravated by service.  38 C.F.R. § 3.304(b).

The Veteran did not give history of Osgood- Schlatters disease or any knee symptoms on entrance examination and the knees were evaluated as normal.  As Osgood- Schlatters disease or a knee disorder was not noted on entrance examination, the Veteran is presumed to have been in sound condition upon entry to service. 38 U.S.C.A. § 1111.  

As evidence of record does not clearly and unmistakably establish that the Veteran had a pre-existing knee condition, including Osgood Schlatter's disease, the presumption of soundness is not rebutted and the Veteran is presumed to have been in sound condition as to any knee condition on entrance.  Therefore, the Board will consider the Veteran's claim as one of direct incurrence, rather than one based on aggravation of a pre-existing condition.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

As noted, Osgood Schlatter's disease was diagnosed for the left knee while the Veteran was in service.  There was no diagnosis or treatment of the right knee.  The Veteran has bilateral degenerative joint disease of the knee.  The question, therefore, is whether the Veteran's current bilateral degenerative joint disease is related to the Veteran's service, including the Osgood Schlatter's disease.

After a review of the evidence, the Board finds that the Veteran did not have a right knee injury or disease in service, or chronic symptoms of right knee disorder in service.  The Veteran's service treatment records do not show any complaints, symptoms, diagnosis, or treatment of the right knee, and shows that he was not treated for a right knee disorder during service.  At the service separation examination, the Veteran denied any history or current complaints of arthritis, rheumatism, bursitis, bone, joint, or other deformity, lameness, or trick or locked knee.  On the basis of the service treatment records, in the absence of any clinical finding or diagnosis or even complaints or symptoms in service, arthritis such as degenerative joint disease is not affirmatively shown to have had onset during service.  38 C.F.R. § 3.303(a).  

That finding, however, does not preclude a finding of service connection for the right knee if all of the evidence, including that pertinent to service establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In addition, the Veteran was treated for Osgood Schlatter's disease of the left knee, but the question now is whether that in- service occurrence resulted in the Veteran's current left knee disability.  Arthritis, including degenerative joint disease, is a chronic disease listed in 38 C.F.R. § 3.309.  Therefore, if there is competent a credible evidence of continuity of symptomatology since service, entitlement to service connection of the left knee would be warranted.  38 C.F.R. § 3.303(b), see also Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013).

The Veteran stated in his substantive appeal that he had problems while in the military.  The Veteran also asserted in his November 2011 VA examination that he has had knee pain since he left service.  To the extent that the Veteran asserts continuity of symptoms since service, the Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence).

In this instance, there are no service treatment records of the Veteran for the right knee and there was treatment of the left knee for Osgood Schlatter's disease, but not arthritis.  Moreover, the evidence does not establish continuity of a disability for either knee since service.  Instead, the evidence establishes an onset of symptoms and disability well after service.  The available evidence demonstrates the first time he sought treatment since separation was contemporaneous with the filing of his claim in March 2007.

In the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence, which weighs against the claim).  The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Here, the lapse of time from separation in July 2007 to the first notation of complaints or treatment of the knees weighs against the Veteran's assertions of continuous symptoms such as pain.

The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible).  Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are not credible and less probative than the negative evidence, which interrupts continuity. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). 

Thus, the Board recognizes that documentation of an injury is not required, Buchanan, supra, but rather, the Board has weighed the negative evidence of the in service treating medical records for at least the right knee and subsequent treating records for both knees against the Veteran's statements that an injury disease, or event to the knees in service has caused him problems since separation to the present.  The Veteran's post-service medical records are negative for complaints, symptoms, treatment, findings, or diagnoses for 40 years following separation.  Furthermore, as noted, the VA examiner in November 2012 (and again in May 2013) determined that the picture of the Veteran's bilateral knee disability is consistent with his civilian job, age, and genetics.

The intercurrent injury interrupts continuity of symptomatology and is persuasive evidence against continuity of symptomatology.  38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.).  For this reason, the preponderance of the evidence is against the claim of service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b).  

The Board has thus determined that while the Veteran is competent to provide lay evidence concerning the onset of his knee disabilities, the Veteran is not as credible as the documented medical evidence establishes that the onset of symptomatology occurred after service.  The Board has therefore assigned little weight to the Veteran's assertions of continuity of symptoms since service.  Based on the foregoing, the Board also finds that arthritis of either knee did not manifest to a compensable degree within one year of service separation.  Degenerative changes of the right and left knee is first noted in March 2008 and well beyond the one-year presumptive period for manifestation of degenerative as a presumptive chronic disease under 38 U.S.C.A. §§ 1112, 1131; 38 C.F.R. §§ 3.307, 3.309

As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or causation, or credible evidence of continuity of symptomatology, the Board looks to the medical evidence.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159

As for the Veteran describing a contemporaneous medical diagnosis and symptoms described by the Veteran that later support a diagnosis by a medical professional, the Veteran has not provided any evidence that his current knee disabilities are related to service.

The only competent medical evidence are the opinions of the various VA examiners, particularly the VA examiner in November 2012 with his addendum in May 2013.  The examiners are qualified by education, training, or experience to diagnosis a medical condition and to offer an opinion on causation.  With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -03 (2008).

The Board finds the unfavorable medical opinion of the November 2012 and May 2013 VA examiner is well reasoned, detailed, provide a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms.  The examiner acknowledged the Veteran's evidence of diagnosis and treatment in service regarding the Osgood- Schlatter's disease.  The examiner noted, however, the lack of findings at separation regarding the knees.  Moreover, the VA examiner concluded it was less likely than not the Veteran's knee disabilities were related to service and the current bilateral degenerative joint disease of the knees is more likely than not secondary to the effects of aging, genetics, musculoskeletal deconditioning, and obesity.  Complications of Osgood-Schlatter disease are rare and further, a less likely etiologic factor causing the degenerative joint disease.  The examiner thus took into account all of the medical evidence of record and relied upon and applied medical knowledge from the medical literature to form his opinion.  He set forth an accurate historical history with medical details taken from the Veteran's claims file, which renders it especially probative.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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). 

Being based on a complete review of the record, these opinions also take into account the Veteran's own assertions, but the examiner has determined the Veteran's assertions do not establish a relationship to service.  The Board therefore finds that the opinion of the July 2013 VA examiner as persuasive evidence against the claim for service connection for a disability for either knee.  As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current disability of the knee or the relationship to service, which opposes, rather than supports, the claim.

Accordingly, the weight of the medical evidence is against an association or link between any current disabilities of either knee and service, including the in service treatment for Osgood Schlatter's disease.  The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).













ORDER

Entitlement to service connection for a left ear hearing loss is denied.

Entitlement to service connection for left knee degenerative joint disease is denied.  

Entitlement to service connection for right knee degenerative joint disease is denied.  



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs