Citation Nr: 1338604 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-17 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability. 3. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Houston RO. In July 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is associated with the claims file. The Board remanded the case in September 2012 and July 2013. The case has since returned for further appellate review. However, upon further review, the issue of entitlement to service connection for bilateral hearing loss is again addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The probative medical evidence does not substantiate a finding that the low back disability was incurred in or aggravated by service, or is otherwise proximately due to, or the result of, a service-connected disability. 2. The probative medical evidence does not substantiate a finding that the right knee disability was incurred in or aggravated by service, or is otherwise proximately due to, or the result of, a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for a low back disability, to include as secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria are not met to establish service connection for a right knee disability, to include as secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran was provided VCAA notice in August 2005, January 2006, January 2008, April 2009, July 2009, and December 2009 letters. Collectively, these letters notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He has also been advised as to how disability ratings and effective dates are assigned. See Dingess, supra. After notice was provided to him, his claim was readjudicated by way of SSOCs issued in June 2012, May 2013, and August 2013. He has therefore received all required notice concerning his claim, and it has been reconsidered since providing all required notice. VA's duty to assist includes assisting him in obtaining his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's VA and private medical evidence, a hearing transcript, and the Veteran's contentions. After the Veteran's July 2012 hearing and before the case was transferred to the Board, some of his service treatment records became separated from the claims file. Subsequently however, newly-obtained service treatment records to include a copy of the Veteran's January 1959 entrance examination and an undated document believed to be page two of the Veteran's separation examination, were added to the claims file. To the extent that any additional STRs are still missing, VA has a heightened obligation to explain its findings and conclusions and to consider the benefit- of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). V A's duties to notify and assist him with this claim have been satisfied. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned VLJ identified the issues on appeal. The VLJ obtained information to clarify the Veteran's arguments and advised him to submit any lay statements relevant to the claims. Based on the evidence of record and the hearing testimony, the VLJ requested that the Veteran be afforded VA examinations to further assist in substantiating the claims, and such was accomplished in October 2012. The hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Board has not identified any hearing deficiency. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the development of the Veteran's claim discussed above, the Board finds no deficiency in the Board hearing or in development of the claim. See id. Legal Criteria - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In addition, service connection may be granted for any disease diagnosed after discharge, when 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 order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may be established as a chronic disease diagnosed in service or on the basis of continuity of symptomatology. Id. A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The medical evidence of record reflects that the Veteran is currently diagnosed with degenerative osteoarthritis in the right knee and degenerative disc disease of the lumbar spine. He asserts he injured his right knee and low back during a motor vehicle accident (MVA) during service. The record confirms that the Veteran was involved in a MVA during service in 1960, sustaining injury to his left knee, left wrist, as well as laceration to the lower medial portion of his right leg. See April 1979 rating decision. However, there are no in-service complaints, treatment, and/or diagnoses pertinent to the right knee or low back. The first evidence of a low back disability is not shown in the record until September 2005, which is approximately 25 years after service discharge. Complaints of right knee pain are not shown until 2006, and x-ray evidence of osteoarthritis of the right knee is not diagnosed until the May 2007 VA examination. Although not dispositive by itself, the absence of any indication of a relevant medical complaint until many years after service is relevant in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The preponderance of the evidence is against a finding of a nexus between the current low back and right knee disabilities and service or his service-connected left knee disability. The record contains a number of etiology opinions. According to a February 2007 medical report, Dr. Furniss stated that the Veteran's back pain is probably related to his left knee injury sustained during service. This opinion however is stated in equivocal terms and the equivocal nature of the opinion diminishes its probative value. Evidence of a mere possibility is too equivocal to substantiate the Veteran's claim. The Court has held that that use of equivocal language such as "possible," or, in this case, "there is a possibility" and "could be" makes a statement by an examiner which is speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus.). Additionally, Dr. Furniss did not provide any supporting rationale for his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. Furniss's opinion is therefore assigned little probative weight. In May 2007, the Veteran underwent a VA compensation examination and was diagnosed with age-acquired degenerative joint disease (DJD) of the right knee. The examiner stated that such disability has absolutely no connection with his service-connected left knee disability. However, the May 2007 VA examination is of low probative value as it does not take into account the entire history of the right knee disorder since it fails to document the Veteran's reported history. A May 2012 VA examiner provided opinions unfavorable to the claims. However, the examination report contains a section that should include the medical history of the Veteran's low back disorder to include its onset and course, but the examiner only noted current minor complaints. Thus, it appears that the opinion provided also did not consider the entire medical history. In October 2012, VA afforded the Veteran an additional compensation examination. After examining the Veteran and reviewing the claims file, the examiner determined that the Veteran's low back and right knee disabilities were less likely than not incurred in or caused by the claimed in-service event. The examiner stated that there is no evidence of any complaints, evaluation, or treatment for back or right knee conditions in service. Although the Veteran alleges that his back and right knee conditions are related to the 1960 MVA, the examiner noted that he was in service for another 19 years without any complaints related to his low back or right knee. The Board notes further that his separation examination report is negative for any low back and right knee diagnoses. In addition, the examiner also observed that the first documented low back and right knee complaints are approximately 27 years after service discharge. The examiner determined that there is no evidence of a chronic ongoing condition associated with military service. Additionally, the October 2012 VA examiner indicated that the Veteran's low back and right knee disabilities are less likely than not proximately due to, the result of, or aggravated by his service-connected left knee disability. The examiner stated that there is no medical or scientific evidence supportive of a finding that arthritis in one knee causes arthritis in the opposite extremity or the spine. The examiner indicated that the Veteran has mild, age-appropriate changes in his right knee and spine. The examiner concluded that there is no connection between the Veteran's service-connected left knee disability and his low back and right knee disabilities, and there is no evidence of any aggravation due to the service-connected left knee disability. As noted, subsequent to the October 2012 examination, additional STRs were associated with the record; thus, the Board requested an addendum opinion. In August 2013, the examiner of the October 2012 VA examination provided an addendum. After a review of the complete record, to include the additional STRs, the VA examiner made no changes to his prior opinion that it is less likely that the Veteran's low back and right knee disabilities were incurred in or caused by the claimed injury, and less likely that those disabilities were etiologically related to the service-connected left knee disability. The examiner reiterated that there is no evidence of a chronic, ongoing condition associated with the military service and that there is an absence of pertinent injury or treatment in service. The examiner again emphasized that the Veteran has age-acquired mild degenerative changes in his back and right knee. The examiner concluded by stating that there is no evidence of aggravation by the Veteran's service or due to his left knee disability. Collectively, the October 2012 and August 2013 VA opinions are highly probative evidence, as they relied on sufficient facts and data, provided a rationale for the opinion, and contain sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner had the opportunity to review the claims file (as noted in the addendum) and examine the Veteran. The Veteran, as a layperson, is competent to report his observable symptoms of his low back and right knee, such as pain. However, the question of whether his current low back and right knee disabilities are related to his service or a service-connected disability is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning a back or right knee disability, he is not competent to comment on the etiology of his current low back and right knee disabilities. The competent medical evidence outweighs the Veteran's unsubstantiated lay reports regarding etiology. Service connection for arthritis of the right knee based on continuity of symptomatology is for consideration, as it is a chronic disease listed in 38 C.F.R. § 3.309(a). The Veteran has not specifically asserted a continuity of symptomatology of right knee arthritis since service, and as noted, the first x-ray evidence of right knee arthritis is not shown until decades after service separation. The medical records are more probative than any lay assertions of continuity of symptomatology, and weigh against a finding of continuity of symptomatology of right knee arthritis since service. Thus, service connection based on continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is not warranted. The Veteran's current diagnosis of degenerative disc disease of the lumbar spine is not for consideration based on continuity of symptomatology because it is not listed as a chronic disease under 38 C.F.R. § 3.309(a). The preponderance of the evidence is against the Veteran's claims of service connection for low back and right knee disabilities, and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b) 2013). Thus, the claims will be denied. ORDER Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability, is denied. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability, is denied. REMAND A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not substantially complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand to RO for further development. Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the July 2013 remand, the Board requested an addendum to an October 2012 VA audiology examination, in pertinent part; however, there is no indication that such has been accomplished. The hearing loss claim is once again remanded to the AMC for the appropriate action. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's entire claims file to the VA audiologist who conducted the October 2012 VA audio examination for bilateral hearing loss (or a suitable substitute if that VA physician is unavailable). The VA audiologist must review all pertinent evidence of record, specifically the January 1959 entrance examination and page two of the Veteran's separation examination. *Comment on the significance, if any, of the Veteran's PUHLES rating of 2 upon service separation. If after review of the additional documents the previous opinion is determined to be incorrect, then the audiologist must provide a new opinion. If the newly obtained documents do not change the previously provided opinion, the examiner should acknowledge that the additional records were reviewed and confirm the previous opinion. 2. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has reviewed the newly obtained service treatment records. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 3. Thereafter, the issue of service connection for bilateral hearing loss should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs