Citation Nr: 1751582 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-13 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1960 to June 1968. The Veteran also had time in the Army Reserves. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2016, this appeal was remanded to the Agency of Original Jurisdiction for further development. Specifically, the appeal was remanded to obtain additional service treatment records (STRs) and to obtain addendum opinions regarding the Veteran's hearing loss and left knee disability. Since the remand, additional STRs have been associated with the record, and the Veteran underwent audiological and knee VA examinations in April 2017. As the May 2016 remand directives have been fulfilled, further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). The Board notes that the Veteran requested a hearing before a travel board. In a February 2016 written statement, the Veteran canceled his request for a hearing. There are no additional requests for a hearing of record. As such, the Board considers the Veteran's request for a hearing satisfied. See 38 C.F.R. §§ 20.702(e), 20.704(e) (2016). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is causally related to his active service. 2. The Veteran's left knee disability is not etiologically related to active service: a chronic left knee disability was not present in service and did not manifest to a compensable degree within one year of service discharge; and the most probative evidence does not relate the Veteran's left knee disability to service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The Veteran's left knee disability was not incurred in or caused by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307(b), 3.309(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided herein, VA provided adequate notice in letters sent to the Veteran in January and April 2009. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim as well. VA has obtained all identified and available service and post-service treatment records, and the VA examinations afforded the Veteran in April 2017 are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). For each condition, the examiner considered the Veteran's symptoms and history and applied accepted medical standards and principles in rendering an opinion. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is a rebuttable presumption of service connection for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree (a degree of 10 percent or more) within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If a chronic disease is shown in service or within the requisite time period described in 38 C.F.R. § 3.307(b), subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Hearing Loss The record reflects that the Veteran has a diagnosis of bilateral hearing loss, which he asserts is related to service. The Veteran's military occupation specialty was airport crewman. The nature of the Veteran's occupation in service has a high probability of noise exposure. As such, the Board concedes in-service incurrence of noise trauma, and the first two elements of service connection are met. As to a nexus, the April 2017 VA examiner explained that noise trauma has a cumulative effect on hearing sensitivity. The VA examiner reasoned that given the Veteran's noise exposure in the Army, which continued years later in the Reserves, the Veteran's hearing loss is at least as likely as not related to in-service noise trauma. As the VA examiner considered the Veteran's history and symptoms and provided reasoned support for the opinion given, the Board finds the opinion probative. Given the probative opinion, the Board finds that the preponderance of the evidence supports the Veteran's claim for entitlement to service connection for bilateral hearing loss. Left Knee The Veteran contends that his left knee condition is related to service. Specifically, the Veteran links his current left knee condition to having jumped off tanks repeatedly in service. In regard to medical evidence, the record reflects VA examination and private treatment reports, which the Board will address chronologically. A May 1968 separation Report of Medical History in the Veteran's STRs shows that he checked the box for the presence of "trick" or locked knees. A September 1995 arterial evaluation of the lower extremities from Vascular Laboratory indicates complaints of pain from the left calf to the left knee. The Veteran underwent a VA examination in April 2009. The examination report reflects the Veteran's reports that he began having problems with his left and right knees while in Vietnam in 1966 because of jumping repeatedly off of tanks. The report indicates that the Veteran said he could not recall any specific injury to the knee and stated that he does not recall getting an x-ray and was not seen in a hospital. The Veteran reported that his left knee, and the right knee to a lesser degree, are both "trick knees" and tend to jump out on him at unexpected times. The examiner noted that the Veteran did not have a MRI of either knee and had not had any knee surgery. The report reflects the Veteran's report of symptoms as pain, locking, and stiffness in his knees. The VA examiner provided a diagnosis of mild degenerative arthritis of the left knee based on history from the Veteran and physical examination but without x-ray available at the time. The follow-up x-ray indicates an impression per x-ray of grossly normal appearing left knee joint. A January 2011 vascular surgery attending note from Augusta VA Medical Center (VAMC) indicates a history of bilateral lower extremity claudication and chronic low back pain with radiculopathy manifested with burning sensation in both knees. A July 2015 rehab consult note from Dublin VAMC reflects the Veteran's reports that his left knee gives way when he steps wrong and that he has fallen multiple times. The report indicates that the Veteran had physical therapy on several occasions but that it did not help. The examiner noted that a left knee x-ray from May 29, 2015, compared to one from May 05, 2014, revealed no gross acute fracture or dislocation, possible mild degenerative change, and mild arthrosclerosis. The examiner provided an assessment of bilateral osteoarthritis of the knee. In April 2017, the Veteran underwent another VA examination for his knees. The examiner indicated a diagnosis of arthritis of the left knee with a date of diagnosis in 2009. The VA examiner indicated that after a full review of the Veteran's records, it is acknowledged that the Veteran had problems with his left knee during his military active duty. The VA examiner also indicated that the Veteran reported that the injury to his left knee occurred in the field and was not formally documented. The VA examiner indicated that the Veteran now has complaints of chronic bilateral knee pain. The VA examiner opined that the Veteran's bilateral knee arthritis is less likely than not to have been incurred in or caused by an in-service injury, event, or illness. The VA examiner reasoned that MRI reveals no acute injury, fracture, or tears for either knee. The VA examiner also noted that the Veteran is also service connected for diabetic peripheral neuropathy and has had stent placements in his left leg for his ongoing peripheral vascular disorder, which compounds his ongoing lower extremity pain and contributes to his antalgic gait. As to the Veteran's arthritis of the knees, the VA examiner indicated that the Veteran's left knee conditions of chondromalacia and degenerative joint disease are not conditions routinely contributed to acute injury. The VA examiner indicated that furthermore, there is a lack of continuity of care or chronicity found in the medical records between 1968 and 2009. As to lay statements, the Veteran has indicated that his knee pain began in 1966 when he was jumping off tanks in service. He indicated that he did not report the injury and has stated that the pain has gotten worse over the years. Merits Having reviewed the record, medical and lay evidence, the Board finds that service connection for a left knee disability cannot be established. The record reflects a diagnosis of arthritis of the left knee, which the Veteran links to jumping from tanks in service. As such, the first two elements of service connection have been met. At issue is the third element, a nexus. As arthritis is a chronic disability, the Board has initially considered service connection on a presumptive basis under 38 U.S.C.A. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309(a), which would satisfy the third element of service connection. The Veteran was not diagnosed with a chronic left knee condition in service. While the Veteran reported a "trick" or locked knee during his May 1968 separation examination and has indicated that he did not formally document his knee pain in service, the Veteran was not diagnosed with or treated for a chronic left knee disability in service. Accordingly, the Board determines that a chronic left knee disability did not manifest during service. Nor does the record reflect that a chronic left knee disability, to include arthritis, was manifested within one year following service. The Veteran was discharged from service in 1968, and he was not diagnosed with osteoarthritis of either knee until 2009. As a chronic left knee disability also did not manifest within the presumptive period, the Board determines that the fact of chronicity in service is not adequately supported, and the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307; 3.309(a). While the presumption of service connection does not apply, the Board has considered whether service connection may be awarded based on continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Following the May 1968 indication of a trick or locked knee, the record does not reflect complaints of or treatment for knee pain again until 1995, which was in accordance with arterial issues and vascular conditions. The record does not reflect complaints of knee pain again until 2009 then continuously thereafter. While the record does not reflect continuous complaints or treatment for left knee pain following discharge from service, the Board has considered the Veteran's statements that his left knee pain has been consistent since service. However, even considering the Veteran's statements to be credible and probative, his statements are outweighed by the April 2017 VA examiner's opinion. The April 2017 VA examiner acknowledged the Veteran's credible reports of having injured his knees in service by jumping from tanks. However, the VA examiner explained that the form of arthritis the Veteran currently has is not linked to acute injury. The examiner further indicated that MRI of the Veteran's knees did not reveal injury. The VA examiner also provided an alternative cause for the Veteran's current knee pain, noting that he has stents in his leg for a condition unrelated to his arthritis of the knees. As the VA examiner assessed the Veteran's condition based on his history and symptomatology and provided a sound and reasoned explanation for the opinion given, the Board finds the assessment probative. Given the probative evidence, the Board finds that a nexus cannot be established. Accordingly, the Board finds that the preponderance of the evidence does not support the Veteran's claim for service connection for a left knee condition on either a presumptive or direct basis. As such, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for a left knee disability is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs