Citation Nr: 1751606 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-24 780 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from May 2007 to May 2008, to include service in Iraq; and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the National Guard until March 2011. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision that, in pertinent part, denied service connection for a bilateral hearing loss disability and for a right knee disability. The Veteran timely appealed. In September 2017, the Veteran withdrew his prior request for a Board hearing, in writing. In January 2010, the RO granted service connection for post-traumatic stress disorder (PTSD), and assigned a 30 percent evaluation, effective May 23, 2008. While the Veteran filed a notice of disagreement with the initial rating and a statement of the case was issued, no timely substantive appeal was received. In June 2012, a Decision Review Officer increased the disability rating to 50 percent for PTSD, effective from the date of claim; and assigned a 100 percent evaluation for PTSD, effective October 1, 2010. Under these circumstances, it appears that the RO's grant of higher ratings has resolved that matter, and it is no longer before the Board. FINDINGS OF FACT 1. Traumatic arthritis of the right knee is attributable to service. 2. Left ear hearing loss disability is attributable to service. 3. The Veteran does not have right ear hearing loss disability. CONCLUSIONS OF LAW 1. Traumatic arthritis of the right knee was incurred in active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Left hear hearing loss disability was incurred in service. 38 U.S.C.A. § 1110. 3. Right ear hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). These duties have been satisfied in this appeal. All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. A report of VA examination in connection with the claim decided on appeal is of record and appears adequate. The opinion expressed therein is predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, there is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, arthritis is considered chronic and a presumptive disease. See 38 U.S.C. § 1101. The Veteran seeks service connection for a right knee disability and hearing loss disabilty which he believes had its onset in active service or was aggravated by active service. Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996). Right Knee The Board acknowledges that a right knee disability, to include osteoarthritis, was not noted at the Veteran's examination upon entry to service. Because a right knee disability was not noted at entry, he is entitled to a presumption of soundness. However, the presumption of soundness may be rebutted. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by active service. 38 U.S.C. § 1111. In this regard, VA may show a lack of aggravation by establishing that there was no increase in disability during active service or within one year after service; or may show that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1196. Here, the competent evidence of record clearly and unmistakably does not demonstrate that a right knee disability existed prior to active service. Specifically, clinical evaluation of the Veteran's lower extremities at the time of his National Guard enlistment in March 2004 was normal. X-rays first reveal osteoarthritis of the right knee in active service in June 2007. Subsequent X-rays taken in May 2008 do not show the medial compartment changes mentioned in June 2007, which may have been projectional. Joint spaces, bone density, and alignment are normal. The patellofemoral joint appears well-preserved. The impression is essentially unremarkable examination without effusion or osteoarthritic change; sunrise view is recommended. Accordingly, chronicity in active service may be questioned. National Guard records, dated in August 2010, reveal that the Veteran had injured his right knee at Fort Hood while training for deployment. He reportedly fell off a "range bank." Upon evaluation, there was some mild degenerative arthritis or chondromalacia in the right knee. The Veteran's ligaments were stable; however, he had persistent chronic right knee pain and some limited ranges of motion. The Veteran limped with knee pain, which had worsened over the course of deployment in Iraq. Presently, his right knee disability limited his ability to perform duties and failed retention standards. An August 2010 addendum reveals diagnoses of degenerative arthritis of the right knee and chondromalacia, and indicates that the right knee disability occurred in the "line of duty" (LOD) and had not "existed prior to service" (EPTS). A January 2011 report of Physical Evaluation Board Proceedings reveals that the Veteran's degenerative arthritis of right knee renders him unable to perform military functional activities. No indication of any pre-existing right knee disability is recorded. Accordingly, the evidence is against a finding of a pre-existing right knee disability. Moreover, the Board finds that the Veteran's August 2010 complaints in National Guard service of persistent chronic right knee pain and of a worsening during deployment in active service constitute credible evidence of increased severity to demonstrate aggravation. The Veteran reported additional and more frequent swelling of the right knee during deployment and since then, as an exacerbation of his symptoms. This is supported by the fact that the Veteran continues to limp with persistent pain, and to suffer from right knee disability since leaving active service. The Board finds the Veteran's descriptions of chronic right knee pain both in-service and after service, as credible and persuasive. No examiner has indicated that any such worsening or showing of chronic pain in the right knee in active service or since then reflects natural progression of any pre-existing disability. Under these circumstances, the presumption of soundness is not rebutted. Here, there is lay evidence of continuity of right knee pain after discharge, as well as a current diagnosis of osteoarthritis of the right knee. See, e.g., Walker, 708 F.3d at 1338-39. The Board has given consideration to both the positive and negative evidence of record, and finds the overall evidence to be at least in relative equipoise on the question of whether the Veteran's current osteoarthritis of the right knee is related to the in-service knee injury, as reported by the Veteran. Here, the Board has doubt as to causation. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. Accordingly, service connection for traumatic arthritis of the right knee is granted. Hearing Loss The Veteran contends that service connection for a bilateral hearing loss disability is warranted on the basis that he was exposed to mortars and rockets in active service. His DD Form 214 reflects the Veteran's primary specialty as a motor transport operator, and indicates that he served in Iraq from July 2007 to April 2008. In July 2009, the Veteran reported that he suffered hearing loss due to explosions and loud noises in Iraq; and indicates that he continues to have a hearing problem. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Furthermore, his statements are consistent with the circumstances of his service, and the Board finds that there is credible evidence of in-service noise exposure. The report of an August 2008 VA traumatic brain injury evaluation reveals that the Veteran was inside a building in Iraq when a rocket hit outside, which caused ringing in his ear and headaches afterwards. The Veteran reported that his current hearing difficulty was moderate. In July 2009, the Veteran reported that his unit had to stay in Balad, Iraq, on their way home from deployment; and that while in Balad in April 2008, an incoming rocket came within twenty-eight steps from when the Veteran was sleeping. The Veteran reported that he could not hear for a little while, and then his ears started hurting from a loud ringing noise. A VA audiogram in September 2010 first reveals a hearing loss disability of the left ear. Evidence of a current hearing loss disability-i.e., one meeting the requirements of 38 C.F.R. § 3.385-and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Court has held that applicable regulations do not preclude service connection for a current hearing loss 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. Hensley v. Brown, 5 Vet. App. 155 (1993). 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. Here, we have doubt as to the origin of hearing loss disability o the left. In view of the provisions of 38 U.S.C.A. § 1154(a), service connection is granted. However, in regard to the right ear, there has never been competent evidence of right ear hearing loss disability. The service records establish that he did not have disability on the right and the post service records establish that he does not have hearing loss disability on the right. In the absence of disability, there can be no valid claim. ORDER Service connection for right knee traumatic arthritis is granted. Service connection for left ear hearing loss disability is granted Service connection for right ear hearing loss disability is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs