Citation Nr: 1342986 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-34 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral lower extremities. 2. Entitlement to service connection for a left hip disability, to include total left hip replacement. 3. Entitlement to service connection for a right knee disability, to include total right knee replacement. 4. Entitlement to service connection for a low back disability, to include degenerative disc disease and arthritis of the lumbar spine. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to May 1954. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to present videoconference testimony before a Veterans Law Judge (VLJ) on March 27, 2013. However, he failed to report to the hearing. In a June 2013 letter, the Veteran stated that he had missed the hearing because he was ill, but he did not request that a new hearing be scheduled. As such, the Board deems the request for a hearing to be withdrawn. See 38 C.F.R. § 20.704. In May 2013, the Board remanded this case for further development. In September 2013, the Board denied the Veteran's claim of entitlement to service connection for residuals of head trauma and remanded the remaining issues for further development. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent and credible evidence does not show that the Veteran's arthritis of the bilateral lower extremities is related to his military service. 2. The competent and credible evidence does not show that the Veteran's left hip disability is related to his military service. 3. The competent and credible evidence does not show that the Veteran's right knee disability is related to his military service. 4. The competent and credible evidence does not show that the Veteran's low back disability is related to his military service. 5. The competent and credible evidence does not show that the Veteran's bilateral hearing loss is related to his military service. 6. The competent and credible evidence does not show that the Veteran's tinnitus is related to his military service. CONCLUSIONS OF LAW 1. Arthritis of the bilateral lower extremities was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A left hip disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. A right knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 4. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 5. Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 6. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran was sent a letter in June 2010 that provided information as to what evidence was required to substantiate the claims, the division of responsibilities between VA and a claimant in developing an appeal, and what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting 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, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's May 2013 and September 2013 remands, VA sent the Veteran a May 2013 letter requesting that he identify any additional private treatment records and that she complete and return an Authorization and Consent to Release Information form for any record identified. In response, the Veteran submitted a May 2013 statement in support of claim stating that the private treatment records already in the claims file were the only relevant records. VA provided the Veteran with medical examinations in June 2013 and October 2013. These examinations and addendum opinions show that the examiners reviewed the objective evidence of record, documented the Veteran's current complaints, and performed thorough clinical evaluations, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, these examinations are adequate for VA purposes. Thus VA has complied with the May 2013 and September 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 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. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Orthopedic Claims Certain chronic disabilities, such as arthritis, including osteoarthritis and degenerative disc disease, are entitled to presumptive service connection if the disease became manifest to a degree of 10 percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. In this case, the record does not show a diagnosis of arthritis within one year of the Veteran's separation from service. Indeed, no treatment records from the relevant time period are included in the claims file. In his August 2010 statement, the Veteran indicated that his problems first became evident when he was forty years old, long after his separation from service. As there is no indication that any arthritis manifested to a degree of 10 percent or more within one year after discharge, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claim still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). Direct service connection requires competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record contains current orthopedic diagnoses of arthritis of the left thigh and right knee, left hip replacement, right knee replacement, and low back degenerative disc disease. Thus the current disability requirement has been met with regard to these conditions. With regard to the second requirement of an in-service occurrence or aggravation of a disease or injury, the Veteran's service treatment records do not show in-service complaints of, diagnosis of, or treatment for any disability or injury of the bilateral lower extremities, left hip, right knee, or low back. Instead, the Veteran has cited his 22 parachute jumps in service as the source on his current disabilities. While there is no record of a bilateral lower extremities, left hip, right knee, or low back injury due to parachute jumps, the Veteran's service records do confirm that he received a parachutist badge and participated in jumps. Additionally, in his June 2010 letter the Veteran has provided details of one jump that led to sore legs and head. Thus the in-service injury requirement is satisfied. The record does not contain evidence of a medical nexus between the in-service injury and any of the Veteran's current orthopedic conditions. The Veteran has not submitted any such evidence and VA's attempts to establish a medical nexus have yielded negative results. With regard to his lower extremity claims, the June 2013 VA examiner opined that they were less likely than not incurred in or caused by the claimed in service injury, event, or illness and more likely due to the natural aging process and normal wear and tear. In support of these opinions, this examiner noted the lack of complaints or treatment in service, including the April 1954 separation examination, and the first indication of left hip or right knee complaints was nearly forty years after the Veteran's separation from service. With regard to his spinal claim, the June 2013 VA examiner opined that it was less likely than not incurred in or caused by the claimed in service injury, event, or illness and more likely due to the natural aging process and normal wear and tear. This examiner noted that this opinion was based on the lack of complaints or treatment in service and lack of documentation of a back condition until 2005, 51 years after separation. The October 2013 VA examiner was asked to specifically consider the Veteran's lay statements. Nevertheless, this examiner also found that the Veteran's lower extremities claims were less likely than not caused by the claimed in service paratrooping injury. Noting that the Veteran's lay statements could not be unsubstantiated, this examiner reasoned that the medical literature showed that, degenerative arthritis, also known as osteoarthritis, was mostly related to aging: With aging, the water content of the cartilage increases and the protein makeup of cartilage degenerates. Repetitive use of the joints over the years causes damage to the cartilage that leads to joint pain and swelling. Eventually, cartilage begins to degenerate by flaking or forming tiny crevasses. In advanced cases, there is a total loss of the cartilage cushion between the bones of the joints. Loss of cartilage cushion causes friction between the bones, leading to pain & limitation of joint mobility. As such, the medical opinions of record both yield negative medical nexus opinions with regard to the Veteran's lower extremity claims. There is no positive medical evidence to weigh against these opinions. Alternately, service connection for arthritis may be established by a continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions, such as arthritis, explicitly recognized as chronic 38 C.F.R. § 3.309(a)). The first documented complaints of arthritis of record are several decades after the Veteran's separation from service. The Veteran is competent to report a history of joint symptoms dating back to service; however, these statements must be considered in light of the entire record. Layno v. Brown, 6 Vet. App. 465 (1994); Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In this case, it is unclear if the Veteran's is claiming continuity of symptomatology. In his August 2010 statement, he indicated that his disabilities all began at the age of forty, well after his separation from service. At his decision review officer (DRO) hearing in April 2011, the Veteran testified, "I can't say that these symptoms were present in 1954, but even if they were, the doctor would never have known because I was a gung-ho soldier and never would have said that I have a hearing problem or a sore back." Taking this ambivalent statement as an assertion of continuous symptoms since service, the Board finds such an assertion to be not credible. The Veteran denied any such symptoms at the time of separation. By arguing that his recent statements deserve more consideration than the statements he made at the time of his separation examination because he had a strong motivation to withhold information at the time of separation (being gung-ho and not wanting to appear weak to his father), the Veteran in essence is saying that his recent statements should be believed because he was not telling the truth before. That argument is not compelling and in fact weakens his overall credibility as the Veteran now has at least as strong of a motivation to report ongoing symptoms since service (to establish service connection and receive the associated monetary benefit). Based on this, the Board finds that the Veteran is not credible with regard to his reports of a continuity of symptoms since service. To the extent that the Veteran himself believes that his current orthopedic conditions are due to his military service or his service connected knee disabilities, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted above, the competent and credible evidence of record indicates a significant time period between the claimed injury and the onset of symptoms. As such, the question of causation extends beyond an immediately observable cause-and-effect relationship and includes a significant intervening injury and the Veteran is not competent to address etiology in the present case. Absent a positive medical nexus opinion or a competent lay nexus opinion, the Board finds no basis upon which to award service connection for any of the Veteran's orthopedic claims. In short, for reasons expressed immediately above, the claims of service connection for arthritis of the bilateral lower extremities, a left hip disability, a right knee disability, and a low back disability must be denied. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Audiologic Claims As a chronic condition, sensorineural hearing loss (organic disease of the nervous system) would be entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The first diagnosis of hearing loss came in November 1996, more than 40 years after service. The record does not contain any earlier records of treatment or evaluation for hearing loss. Therefore, there is no indication that the Veteran's hearing loss was manifested to a degree of ten percent or more within one year after discharge. Service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). As such, the Board will now address whether service connection on a direct basis is warranted. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). As noted above, direct service connection requires competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See Davidson, 581 F.3d 1313. For 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 500, 1000, 2000, 3000, or 4000 hertz, in ISO units, 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. During the pendency of this appeal, the Veteran has been shown to have sufficient bilateral hearing loss to establish impaired hearing for VA purposes and tinnitus. Thus, the current disability requirement is met with regard to both claims. To the extent that the Veteran had previously associated his audiologic conditions with an in-service head injury, the September 2013 Board decision already found that the evidence of record failed to show that the Veteran had any current residuals of a claimed in service head trauma. The Board will not needlessly repeat that discussion here. Neither hearing loss nor tinnitus was not noted in service. Indeed, the Veteran's audiometer results at the time of his April 1954 separation examination showed clinically normal hearing. No ear abnormality was noted. In the accompanying Report of Medical History, the Veteran denied ear, nose, or throat trouble. Instead, the Veteran claims service connection for hearing loss due to in-service noise exposure, including exposure to loud noises from propeller planes. See e.g., May 2010 Claim. The Board concedes this type of noise exposure in service is consistent with the circumstances of the Veteran's service. With regard to the third and final requirement for direct service connection of a nexus between the in-service noise exposure and the Veteran's current hearing loss and/or tinnitus, VA scheduled the Veteran for a June 2013 audiology examination. This examiner opined that the Veteran's hearing loss and tinnitus were not at least as likely as not related to his military service, noting the Veteran's lack of audiologic or otologic issues during service, his normal hearing during service, including at the time of his April 1954 separation examination audiogram, lack of significant variability at any of the measured frequencies, and lack of asymmetry. The Veteran's tinnitus was found to be a symptom associated with the Veteran's hearing loss. In her October 2013 addendum opinion, the June 2013 examiner specifically considered the Veteran's lay history of hearing loss and his reported in-service acoustic trauma. This addendum opinion likewise concluded that hearing loss was less likely than not related to noise trauma with military service. In addition to the rationale discussed in the original opinion, this examiner noted that an audiogram, such as the one given at the time of the Veteran's separation examination, is the objective standard for determining hearing loss. Moreover, the current understanding of auditory physiology found that hearing loss from noise injuries occurs immediately following exposure. There was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The Veteran did not submit a positive medical nexus opinion for either condition. The Board has also considered the Veteran's lay assertions that his hearing loss and tinnitus are related to his noise exposure during military service. Again, the Board acknowledges Jandreau, 492 F.3d 1372. Here, however, given the passage of time, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Board has also considered whether continuity of symptomatology has been shown. In this case, VA treatment records from November 2005 note the Veteran's report that he first noticed symptoms of difficulty hearing in 1967 or 1968, which was more than a decade after his separation from service. To the extent that the Veteran has since reported continuous symptoms of hearing problems since service, the Board notes that this November 2005 record was created during treatment for his hearing problems, prior to filing his May 2010 claim. As such the reported onset of 1967 or 1968 given at that time is found more credible than the contradictory statements made during the pursuit of this appeal. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, while the Veteran testified that he would not have mentioned his hearing trouble at the April 1954 separation examination, this statement is at odds with the objective evidence of clinically normal hearing at the time of separation. As this audiogram is objective evidence, it would not have been effected by the Veteran's subjective desire to minimize his complaints. Thus, the Veteran's statements to the contrary are less probative. In light of the conflicting reports, the Board finds the history provided at the time of treatment to be more probative than the Veteran's statements made in conjunction with his service connection claim. Thus, the weight of the evidence is against a finding of continuity of symptomatology. For the reasons stated, the Board finds that service connection for hearing loss and tinnitus are not warranted, and these claims are denied. ORDER Service connection for arthritis of the bilateral lower extremities is denied. Service connection for a left hip disability, to include total left hip replacement is denied. Service connection for a right knee disability, to include total right knee replacement is denied. Service connection for a low back disability, to include degenerative disc disease and arthritis of the lumbar spine is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs