Citation Nr: 1439655 Decision Date: 09/05/14 Archive Date: 09/09/14 DOCKET NO. 10-20 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for the residuals of a head injury. 2. Entitlement to service connection for the residuals of a neck injury. 3. Entitlement to service connection for residuals of a left knee injury. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1968 to April 1970. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2012 decision, the Board reopened and remanded the Veteran's claim for service connection for bilateral hearing loss. It also remanded his service connection claims for conditions of the head, neck, and left knee. All of these claims were remanded for further development; specifically, the RO was directed to provide the Veteran with VA medical examinations and etiological opinions for these conditions. Review of the completed development reveals substantial compliance with the remand directives. FINDINGS OF FACT 1. The Veteran does not have a disability attributable to service or ratable bilateral hearing loss disability. 2. The Veteran's current neck and left knee disabilities are not etiologically related to his active duty service, specifically injuries that allegedly occurred after he ran into a tree stump. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a head disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria to establish service connection for bilateral hearing loss are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 3. The criteria to establish service connection for neck disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 4. The criteria to establish service connection for a left knee disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2013). The Veteran was provided the required notice and information in May and July 2009 letters prior to initially adjudicating his claim in September 2009. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Thus, the duty to notify has been met. VA also has a duty to assist the Veteran in obtaining potentially relevant records and providing an examination or medical opinion when necessary to make a decision on the claim, unless there is no reasonable possibility the assistance would help substantiate the claim. The Veteran's service treatment records (STRs) and VA treatment records, as well as identified private treatment records, have been obtained and associated with his claims file for consideration. He also was provided VA examinations, which contain a description of the history of the disabilities at issue, document and consider the relevant medical facts and principles, and provide opinions regarding the etiology of these claimed conditions. Thus, VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Standard of Review In deciding these claims, the Board has reviewed all of the relevant evidence in both the electronic (Veterans Benefits Management System (VBMS) and Virtual VA) and physical claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Merits of the Claims Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Presumptive service connection is available to Veterans who have certain chronic disorders and diseases, per se, which manifest during service or within one year after service to the required minimum compensable degree of at least 10-percent disabling. This presumption is rebuttable by affirmative evidence to the contrary, however. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If the conditions to presumptive service connection cannot be said to be "chronic" in the medical sense, a Veteran may still yet succeed if he can show a continuity of symptomatology since service under 38 C.F.R. § 3.303(b), but only assuming his condition is one listed in § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Degenerative arthritis and bilateral hearing loss are included in these listed conditions. The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The question of whether medical, versus lay, evidence is needed to support a claim is entirely dependent on the type of condition being claimed, so is made on a case-by-case basis. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Unlike simple conditions, the diagnosis and origins of hypertension are medically complex issues not readily amenable to probative lay comment. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (also discussing this axiom in a claim for rheumatic heart disease). Once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on his behalf. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). With regards to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. The Board may accept one medical opinion and reject others, based upon multiple factors evaluating probative value. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Head Injury The Veteran alleges that he has residuals of head injuries that occurred while he was in basic training. He alleges that in one incident, a drill instructor stood on his helmet which led to a bloody nose, and in another, he ran into a tree stump which caused him to fall and land on his head. The STRs are silent for any treatment of an in-service head injury. There are two entries for headaches in August 1969. His separation examination in March 1970 does not contain any reference to a head injury, nor does the accompanying Report of Medical History that the Veteran himself filled out. He has not submitted any VA or private treatment records concerning any residuals of an in-service head injury. In March 2013, a VA examiner opined that it was less likely than not that the Veteran had any current medical condition of his head. The examiner pointed out that the Veteran denied chronic headaches as well any history of migraine or tension headaches. Furthermore, the Veteran denied that his head had any symptoms that were independent of those he experienced with his neck. Thus, the examiner concluded that any perceived condition of the Veteran's head was in fact an extension of the Veteran's cervical condition. The symptom of pain in and itself is not recognized as disabling for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Absent a current diagnosis of a condition of his head, or since the filing of the claim for this alleged disability, the claim is not sustainable and accordingly must be denied. Neck Injury The Veteran contends he injured his neck as a result of the same in-service incident where he ran into a stump and resultantly landed on his head. The STRs are silent regarding the existence of an in-service injury to the neck. The Veteran received private treatment in January 1997 following a motor vehicle accident. He reported pain and discomfort in his neck after being rear-ended. The physician stated the condition would be treated as a muscle spasm. He continued to receive treatment for his neck over the next several months: a March 1997 record states that earlier x-rays of his neck looked "pretty good"; another March 1997 entry indicates that a CT scan of his neck showed a small herniation and prescribed further physical therapy; and later March and April 1997 entries indicate an improving neck condition. He was treated in November 2000 for neck pain that occurred after he had been shoveling snow. This record indicates that he suffered a ruptured disc in his back from the motor vehicle accident years prior. The final assessment is mechanical neck pain. In a private treatment record dated July 2004, the Veteran alleged that he tripped over a duffle bag and twisted his neck, which resulted in pain to his bilateral upper back region. He was seen again for neck pain in May 2006. A prior "whiplash" incident that occurred nine years previously is noted. The physician links headaches to the neck pain and states that he considers the condition "in the neck strain category." Further treatment for neck pain in July 2009, indicates a probable neck strain. He underwent a VA examination for his cervical spine in March 2013. The examiner indicated the claims file was reviewed. He diagnosed the Veteran with "degenerative change, cervical spine." The Veteran reported flare-ups during cold weather or he slept in a certain position. A radiology report of the Veteran's cervical spine degenerative change. The examiner found that the Veteran's reported neck disorder was less likely than not that the Veteran's neck condition was attributable to his active military service. The examiner noted the Veteran's report of hurting his neck after running into a stump in service, but also noted that the STRs were completely silent for neck treatment or conditions, including his March 1970 separation examination. He further cited the fact that the Veteran filed claims for several injuries in 1980, but not for his neck. The examiner also discussed the Veteran's 1997 motor vehicle accident, as well as his past occupation on the automation line that involved extensive repetitive turning and twisting. The examiner concluded that since the claims file did not show any evidence of a chronic neck problem, or even an acute one, prior to 1997, the evidence therefore did not support the Veteran's claim. While the Veteran is competent to report an in-service incident he is not competent to provide evidence regarding the etiology of his current degenerative neck condition. Instead, the competent and credible opinion by the March 2013 examiner is against the establishment of a nexus between his current neck condition and service. It was made based on consideration of all of the relevant evidence of record, is fully articulated, and is supported by a well-reasoned analysis centered on the fact that the Veteran did not begin experiencing chronic back pain until the motor vehicle accident in 1997, some 27 years after his separation. Thus, the Board places the most probative weight on the VA examiner's opinion. The Veteran has not provided any medical evidence conversely indicating his neck condition is directly related to his service or, alternatively, he has not shown the presence of a degenerative condition to the required minimum compensable degree of at least 10 percent disabling within one year of his separation from service in April 1970 (so by April 1971) to warrant presuming it was incurred during his service. So as the March 2013 opinion is the only competent and credible medical evidence regarding the etiology of neck condition and disputes any notion that it is related to or the result of his military service, his claim for this condition must be denied. The preponderance of the evidence is against this claim, and the appeal will be denied. 38 C.F.R. § 3.102. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Left Knee Injury The Veteran also alleges that he has a left knee condition caused in active service. The STRs are silent on any in-service left knee treatment. There is treatment for his right knee in March 1969. Additionally, in his separation Report of Medical History in March 1970, the Veteran indicated that he experienced a "trick" or locked knee, although he did not indicate whether it was the left or the right. The Veteran submitted a letter he wrote his parents while serving in Vietnam in March 1969, where he references twisting his knee while playing football. He does not indicate which knee was twisted, however this statement is seemingly referring to his right knee, as he has the above-mentioned March 1969 treatment records. There are VA treatment records concerning his left knee. In 2012, he sought treatment for what was assessed as left knee pain and was eventually was prescribed a left knee brace in September. In one of the September 2012 entries, it is noted that the Veteran reported a "two to three month history of left knee pain," with "[n]o history of injury, trauma or fall." At his March 2013 VA examination, the examiner diagnosed the Veteran with a left knee strain. The Veteran told the examiner that he had injured his right knee playing football in service, not his left, but did remember hurting both in the stump incident. He further stated that the left knee gave him more current problems than the right and that he had to wear a brace for it. He could not recall treatment for his knees between 1970 and 1997 and stated he had not had any accidents or injuries to his left knee since separation from service. A September 2012 radiology report is included, which showed normal bilateral knees. The examiner opined that while it was at least likely as not that the veteran had a current left knee condition, it was less likely than not that the condition was attributable to his active military service. As support for his opinion, the examiner cited the lack of any in-service treatment for a left knee condition beyond the Veteran responded affirmatively to whether he had a "trick" or locked knee on his separation Report of Medical History. He also noted that the Veteran denied any left knee treatment between 1970 and 1997. Additionally, the Veteran did not report left leg or knee pain until after back surgery in August 2004. The examiner further stated that the Veteran's work as an automation tender for over 31 years required a lot of walking, standing, and turning. The preponderance of the evidence is against the claim. The March 2013 examination report both considered the Veteran's subjective report and is fully explained, based on consideration of all of the relevant evidence. The Board places the most probative weight on the VA examiner's opinion. The Board also notes that the September 2012 VA treatment record indicated that the Veteran then-reported left knee trouble for only a period of several months prior and not a chronic condition. The Veteran has not provided any medical evidence conversely indicating his left knee condition is directly related to his service or, alternatively, he has not shown the presence of a degenerative condition to the required minimum compensable degree of at least 10 percent disabling within one year of his separation from service in April 1970 (i.e., by April 1971) to warrant presuming it was incurred during his service. As the March 2013 opinion is the only competent and credible medical evidence regarding the etiology of the knee condition and disputes any notion that it is related to or the result of his military service, his claim for this condition must be denied. The preponderance of the evidence is against this claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 3.102. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). d. Bilateral Hearing Loss The Veteran attributes his bilateral hearing loss to his military service and, in particular, to being repeatedly exposed to excessively loud noise while in service. In support of his claim, he submitted a February 2009 private audiological evaluation where the audiologist opined that it was likely that the Veteran's in-service noise exposure was the beginning of his hearing loss. However, the audiologist did not provide the pure-tone threshold numbers, and instead just listed the averages as 22.50 dBHL bilaterally. According to 38 C.F.R. § 3.385, impaired hearing only will be considered to be a ratable disability for VA compensation purposes when the auditory threshold in any of these frequencies is 40 decibels or greater; or when the auditory threshold 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. This is irrespective of the additional determination that also has to be made regarding whether any current hearing loss is the result of the noise exposure in service or instead, other unrelated factors. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Thus, as part of the November 2012 remand, the Board sought a new VA examination to determine whether the Veteran had a ratable hearing loss disability. He had this examination in March 2013. There, pure-tone thresholds, measured in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 15 5 20 20 25 18 Left 15 10 25 35 30 25 He also registered scores of 94 percent in the right ear and 98 percent in the left on the Maryland CNC Word List speech recognition test. The examiner ultimately diagnosed the Veteran with sensorineural hearing loss in the higher frequencies in the right ear and sensorineural hearing loss in both the lower and higher frequencies in the left, and opined that this hearing loss was at least as likely as not caused by or a result of an event in military service. Despite the examiner's etiological opinion, the Veteran still has not shown he has a ratable hearing loss disability pursuant to 38 C.F.R. § 3.385. His recent VA examination did not show an auditory threshold in any of the 500, 1000, 2000, 3000, or 4000 to be 40 decibels or greater; nor did it show a threshold for at least three of these frequencies to be 26 or greater. It also did not show speech recognition scores less than 94 percent. Thus, the Board must deny his claim since, for all intents and purposes there simply is no present hearing loss disability to relate or attribute to his military service. Moreover, the evidence is not in relative equipoise concerning this, meaning about evenly balanced for and against the claim, so there is not the required reasonable doubt to otherwise allow for the granting of this claim. 38 C.F.R. § 3.102. ORDER Service connection for the residuals of a head injury is denied. Service connection for the residuals of a neck injury is denied. Service connection for the residuals of a left knee injury is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs