Citation Nr: 1627364 Decision Date: 07/08/16 Archive Date: 07/14/16 DOCKET NO. 05-39 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to December 1977. This appeal initially came to the Board of Veterans' Appeals (Board) from April 2005 and August 2009 rating decisions. In August 2014, the Board, in part, denied the Veteran's claim for service connection for right and left knee disabilities, hearing loss, and tinnitus. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In November 2015, the Court vacated the portion of the Board decision denying service connection for right and left knee disabilities, hearing loss, and tinnitus and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). The issues of entitlement to service connection for hearing loss and tinnitus being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A right knee injury or disorder, including arthritis, did not onset in service or within one year of service and is not etiologically related to service. 2. A left knee injury or disorder, including arthritis, did not onset in service or within one year of service and is not etiologically related to service. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in or aggravated by service, nor may gouty arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2015). 2. A left knee disorder was not incurred in or aggravated by service, nor may gouty arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that she has bilateral knee disability related to service. During a personal hearing in June 2006, she presented testimony to the effect that her job in service required a lot of lifting, pushing, and pulling excessively heavy equipment. She also attested to several falls and injury to the joints in service in which she injured her knees. 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. There is no issue as to providing an appropriate application form or the completeness of the application. VA appropriately and properly notified the Veteran of the information and evidence needed to substantiate and complete the claims. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, to include affording her VA examinations. The examinations are adequate to render determinations as to the issues on appeal. The Board notes that the Veteran's representative argued in the brief to the Court that the VA examinations were not adequate as they did not address lay testimony or discuss a possible nexus to the service-connected back disability. In this case, however, the Board has specifically found the lay testimony as to continuous symptoms to be not credible. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of service medical records to provide a negative opinion when the Board specifically assumed that the Veteran sustained an injury during service); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006)("[R]eliance on a Veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran"). While the Veteran is service-connected for the thoracolumbar spine, the only evidence suggesting a link between the knees and the back is the Veteran's own statement. Under current case law, such a bare assertion standing alone does not suffice to trigger the duty to obtain a VA examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case. If Congress had intended that requirement, presumably it would have explicitly so provided."). The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims of entitlement to service connection for left and right knee disability are ready to be considered on the merits. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.304 (2015). Service connection may 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 or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2014). Certain chronic diseases, including arthritis, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Factual Background The Veteran's service treatment records are negative for complaints or findings referable to right and left knees. She filed a claim for various disabilities in January 1978 but did not indicate that she had a knee problem. When afforded a post service VA examination April 1978, no knee complaints were recorded, nor was any condition found. Voluminous post service private and VA clinical records dating from 1978 include medical reports from Scott and White Clinic dating 1985 that reflect various vague joint complaints but none specific to the knees. In April 1994, she denied any other joint paint except for the right hip. The knees were reported to be unremarkable and it was found that there was otherwise with no evidence of underlying disease or signs of arthritis. Clinical reports from King's Daughters Clinic dating from August 1998 reflect no complaint, treatment or diagnosis pertaining to either knee. VA clinical data from October 1998 do not refer to complaints or findings referable to the knees. The Veteran was seen by D.C.W., DC, in July 2004 and reported history of physically taxing duties in service that included heavy lifting, pushing and pulling equipment resulting in multiple joint pain, including knee pain with swelling. Clinical findings on examination included tenderness to palpation of the patellofemoral joints, bilaterally. A pertinent diagnosis of inflammation of the knees was provided. The examiner opined that based on examination of the Veteran and review of records, it was more likely than not that bilateral knee pain was related to military service between 1976 and 1977. VA clinic notes dating from 2006 reflect that the Veteran was seen intermittently for knee complaints and received assessments that included bilateral knee strain and osteoarthritis. On a VA compensation and pension examination in April 2010, she related that she had injured her knees as the result of a lot of kneeling on cold wet concrete while working on the flight line during service. X-rays of both knees were within normal limits. Following examination, the assessment was bilateral knee strain. On VA knee examination in August 2011, the Veteran stated that she did not have any direct trauma to the knees in service but did engage in a lot of kneeling on wet concrete while working on equipment in service, and also used her joints and muscles to move the heavy equipment as part of her military duties. X-rays obtained in April 2010 were reviewed. It was noted that she did not have degenerative or traumatic arthritis, patellar subluxation or any other significant test findings. The diagnosis with respect to the knees was arthralgia, which the examiner opined was less likely than not related to an in-service event, injury or illness. The examiner opined that the Veteran's knee pains were most likely a result of her fibromyalgia as her knee x-rays were negative. It was noted that the claims folder was reviewed. Pursuant to the Board's 2012 remand, the appellant was afforded a VA examination for the knees in October 2013. It was reported that the claims file was reviewed. Pertinent history as reported above was recited. The Veteran related that when she was examined for compensation purposes in 1978, she reported knee problems. She stated that she had been wearing bilateral knee braces and using a TENS unit on her knees for about four years. It was reported that she considered knee problems secondary to her service-connected back problem. X-rays of the knees were obtained and were interpreted as normal and without any evidence of degenerative changes. Chemical laboratory studies were conducted. Following a comprehensive physical examination, the examiner stated that current clinical findings were most consistent with a diagnosis of chronic bilateral knee gouty arthritis with normal radiographic findings. The examiner opined that the knee condition was less likely than not incurred in or caused by an in-service injury, event or illness, including pushing, carrying and moving heavy equipment. It was noted that it was not likely that gouty arthritis became manifest within a year of service. To this end, the examiner referred to a rheumatology consultation in 1994 whereupon the appellant did not have a history of bilateral knee joint symptoms included in her multiple arthralgias. The examiners noted that she denied any other joint symptoms at that time. It was added that there was no evidence found of evaluation or treatment of gout during military service and that gout was not diagnosed until recently, many years after completion of military service. It was reported that laboratory studies during service and one year after service did not support a diagnosis of gout. The examiner stated that the question of secondary service connection and service connection on the basis of aggravation was not applicable. Legal Analysis The Board has carefully reviewed the evidence but finds that service connection for left and right and left knee disability, including gouty arthritis, is not warranted. As noted previously, service treatment records are devoid of knee complaints. The record reflects that after service, the Veteran filed claims for several disabilities in January 1978, and contrary to what she has more recently stated, there was no mention of a knee problem. When afforded a VA examination in April 1978, there is no indication that she reported a knee problem, nor was any symptomatology noted in this regard. Despite extensive clinical evidence showing treatment for multiple complaints and disorders during the interim, there is no documentation of a right or left knee problem until 2004 when inflammation of the knee joints were found. The 2013 VA examiner opined that it is not likely that gouty arthritis onset in or became manifest within a year of service. The Board recognizes that lay assertions may serve to establish a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in considering the lay and clinical history as reported above, the Board finds that Veteran's statements and testimony of continuity of symptoms deriving from service are not credible. While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous records, silence in a record can sometimes be relied upon as contradictory evidence; specifically, the silence in 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. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). In this case, extensive post service clinical data do not attest to a chronic knee disorder for many years after discharge from active duty despite evidence of treatment for many other conditions. The Board would also point out that by her own extensively chronicled documentation of musculoskeletal symptoms from 1977 through 2004 that was received in July 2004, the Veteran had no knee complaint until April 2002 when she stated she developed swelling and tingling in both legs from the knees down to the feet. In view of such, the Board finds that the Veteran has not been a reliable historian and that her contentions that current knee disability derives from service are not credible. In view of such, the Board finds that bilateral knee disability did not have onset in service, and that the presumption of service connection for arthritis does not attach because arthritis is not shown to have become manifest within one year of separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. The Board further finds that even if the Veteran sustained an injury to the knees in service as contended, this did not result in any chronic residuals. See 38 C.F.R. § 3.303. The Veteran advances the theory that her bilateral knee disability is related to her duties on the flight line, including kneeling on concrete, and pushing and pulling heavy equipment in service. The Veteran's chiropractor has provided a clinical opinion in support of her contentions to the effect that it was more likely than not that bilateral knee pain was related to military service. The Board observes, however, that although Dr. D.C.W. noted his review of the appellant's records in rendering his assessment, his opinion was overly broad and general. He did not specify any particular evidence that might have led him to this finding, and did not otherwise provide any rationale for the conclusion that there was a relationship between the Veteran's in-service duties and the development of knee pain and inflammation some 36 years later. The Veteran's history relating continuing knee symptoms to service is not corroborated by and is indeed at odds with the objective record. The Board finds that the 2004 chiropractor's opinion lacks probative value as it is primarily premised on the appellant's own reported history of chronic knee pain since service that is not reliable. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the chiropractor's opinion is not reliable or persuasive. The Board points out that contrarily, when the Veteran was afforded a VA compensation examination in October 2013, the VA examiner rendered a specific diagnosis of bilateral gouty arthritis and determined that this was less likely than not related to service and any duties therein. The rationale included the fact that there was no evidence of treatment for gout during service because it had only recently been diagnosed, and that the appellant did not have a history of bilateral knee joint symptoms included in her multiple arthralgia complaints over the years after service. The VA examiner stated that laboratory studies during and one year after service did not support a diagnosis of gout. For these reasons, the Board finds that the VA examiner's opinion is far more probative that the general statement of the Veteran's treating chiropractor in 2004. Additionally, as gout is well known to be the result of elevated levels of uric acid in the blood, the examiner appropriately declined to address the question of whether it was secondary to or aggravated by a service-connected disability as not applicable. Under the circumstances, the Board concludes that there is no reliable and probative evidence that left and right knee gouty arthritis is related to service or to any incident therein. The Board further notes that the 2011 VA examiner attributed the Veteran's knee pain to fibromyalgia. Veteran is currently service-connected for fibromyalgia effective July 2004 and is in receipt of a 40 percent rating for widespread musculoskeletal pain (pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton and the extremities) and tender points that are constant. Significantly, the 2011 VA examiner only noted a diagnosis of arthralgia, or pain in a joint. See Dorland's Illustrated Medical Dictionary 149 (30th ed. 2003). Thus, the examiner concluded the pain in the knee joints that was not attributed to any other diagnosis was caused by the fibromyalgia. In short, the Veteran has been provided two diagnoses for her knee pain: arthralgia and gouty arthritis. Compare Dorland's Illustrated Medical Dictionary 792 (30th ed. 2003)(defining gout as a group of disorders of purine metabolism, manifested by various combinations of hyperuricemia, recurrent acute inflammatory arthritis induced by crystals of monosodium urate monohydrate, tophaceous deposits of these crystals in and around the joints of the extremities, which may lead to crippling destruction of joints and uric acid urolithiasis) with Dorland's Illustrated Medical Dictionary 697 (30th ed. 2003)(defining fibromyalgia as pain and stiffness in the muscles and joints that is either diffuse or has multiple trigger points). To the extent that the Veteran's knee pain is arthralgia, this arthralgia has been attributed to fibromyalgia, and she is already being compensated for that condition. See e.g. September 2013 VA examination concerning fibromyalgia noting diffuse aches, widespread musculoskeletal pain and tender trigger points throughout. To the extent to which the Veteran has been diagnosed with gouty arthritis, the record does not suggest that this condition was caused or aggravated by the service-connected fibromyalgia. The Veteran has attempted to relate the current left and right knee disabilities to her active service or alternatively to her back or fibromyalgia. Although the Veteran, as a lay person, is competent to describe observable symptoms such as pain and firsthand events and he may be competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of arthritis or other joint disability falls outside the realm of common knowledge of a lay person. See Jandreau, supra. Some medical issues require specialized training for a determination as to diagnosis and causation; therefore such issues are not susceptible of lay opinions on etiology. An opinion of etiology of arthritis would require medical expertise and knowledge of the complexities of the musculoskeletal system and diagnostic testing. Indeed, the September 2013 VA examination illustrates this fact. While the Veteran expressed that she "is not convinced she has gout" the examiner reviewed the record and clearly explained why the Veteran does have a recent diagnosis of gout based upon the clinical arthralgias, elevated uric acid levels during treatment with her primary care physician. He later outlined the various uric acid levels from 1998 to 2012. It is not shown that the Veteran has the knowledge or expertise to opine as to etiology and accordingly her assertion as to a link to service or a service-connected disability is not competent evidence. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for bilateral knee disabilities and the claims must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for right knee disability is denied. Service connection for left knee disability is denied. REMAND The United States Court of Appeals for Veterans Claims (Court), in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may 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. See 38 C.F.R. § 3.303(d) (2015). The rationale given by the 2011 VA examiner as to why the Veteran's hearing loss is not related to her service was that she had normal hearing both on enlistment and at separation with no significant change in hearing. Similarly, the 2013 VA examiner also offered a negative nexus opinion, explaining as rationale that the Veteran's service medical records showed normal hearing sensitivity throughout service with no significant worsening in hearing sensitively noted upon separation from service. As these opinions are potentially in contrast to the ruling in Hensley as neither contains discussion of any other factors aside from the fact that no hearing loss was detected at the time of the Veteran's discharge from service, the Board finds a new VA opinion must be obtained. The rationale for the opinion must include a complete discussion of all potential factors so as to determine whether there is a relationship between the Veteran's current hearing loss and service. As the Veteran's claim for tinnitus is intertwined with the claim for hearing loss, that issue must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental medical opinion from the August 2013 VA examiner or, if unavailable, another suitably qualified VA examiner, addressing the likelihood of a relationship between the Veteran's bilateral hearing loss and her service. There is no need to schedule further examination of the Veteran, unless the reviewer concludes such is necessary. All relevant records, to include a copy of this remand as well as the claims folder, must be made available to and reviewed by the reviewer/examiner in conjunction with the examination or review. The reviewer/examiner must confirm in the examination report that the claims folder was reviewed. Based on review of the record, the reviewer/examiner should render an opinion as to whether it is at least as likely as not (i.e., to a 50 percent degree of probability or greater) that the Veteran's bilateral hearing loss had its onset during military service or is otherwise causally or etiologically related to the Veteran's active service, to include noise exposure, or whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent). In so doing, the examiner should discuss causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. 2. After any additional development deemed necessary, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 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 2014). ____________________________________________ H. SEEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs