Citation Nr: 1753784 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-06 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral sensorineural hearing loss (SNHL). 3. Entitlement to service connection for a left knee condition, to include as secondary to a service-connected disability. 4. Entitlement to service connection for a right knee condition, to include as secondary to a service-connected disability. 5. Entitlement to service connection for a left ankle condition, to include as secondary to a service-connected disability. 6. Entitlement to service connection for hypertension. WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active service from October 1980 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Jackson, Mississippi. The Veteran testified in September 2016 at the RO before a decision review officer (DRO). Thereafter, in January 2017 he testified again at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings are of record. The issues of entitlement to service connection for bilateral SNHL and a left ankle condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has credibly asserted that he experienced tinnitus following in-service noise exposure and that it has been recurrent to the present. 2. The competent evidence does not demonstrate that the Veteran's currently diagnosed right knee degenerative joint disease with osteoarthritis is attributable to the Veteran's active service or any incident of service, to include as due to a service-connected disability. 3. The competent evidence does not demonstrate that the Veteran's currently diagnosed left knee degenerative joint disease with osteoarthritis is attributable to the Veteran's active service or any incident of service, to include as due to a service-connected disability. 4. The competent medical evidence does not demonstrate that hypertension is attributable to the Veteran's active service or any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 1154, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 3. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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. 38 C.F.R. § 3.303(d). Alternatively, service connection may be granted on a presumptive basis for certain chronic diseases as outlined in 38 C.F.R. § 3.309(a) if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). With regards to a showing of chronic disease in service, it is necessary for the Veteran to demonstrate 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." Where the disease identity is established, there is no requirement of evidentiary showing of continuity. However, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tinnitus The Veteran contends that he was exposed to loud noise while in service and that his ears began ringing intermittently following his service. He further contends that the ear ringing has continued to the present day. His service treatment records are negative for any complaints, treatment, or diagnoses related to tinnitus. The claims file does not contain a copy of the Veteran's separation examination; however, the Veteran did not report experiencing any ringing in the ears on his July 1980 entrance examination and did not report experiencing any ringing in his ears as well at any other point during service, to include on an October 1983 audiogram. The Veteran was afforded a VA examination in November 2012 for the purpose of evaluating the nature and etiology of his tinnitus. He reported that he had experienced constant ringing in both of his ears that began around the time that he was discharged from service. After reviewing the claims file, the examiner stated that they could not resolve the issue of etiology of the tinnitus without resort to mere speculation, as the Veteran was shown to be unreliable with regards to his reporting about his hearing difficulties during the corresponding audiological testing to evaluate his bilateral SNHL. During the January 2017 hearing, the Veteran stated that he worked around artillery as part of his duties while in service, and was also exposed to noise from machine guns. According to the Veteran he was not issued hearing protection in service. He also attested that he began noticing ringing in his ears around the time that he left service. After a thorough review of the evidence of record, the Board concludes that service connection for tinnitus is warranted. Although service treatment records do not contain any complaints related to tinnitus, the Veteran is competent to establish the onset, continuity, and current presence of tinnitus solely on the basis of his own lay assertions. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a Veteran competent to testify as to the ringing in his own ears). Acoustic trauma is consistent with the Veteran's service and is substantiated by his competent and credible statements of exposure to loud noises while in service. Furthermore, there is no separation examination to evaluate, and so the only available evidence detailing the status of the Veteran's hearing at the time of his separation is his own account that his tinnitus began around that time. Although the Board acknowledges that the October 2011 VA examiner found it impossible to comment regarding the etiology of the tinnitus without resort to speculation, this lack of specificity significantly reduces the probative value of that opinion, and the Board largely dismisses it. With consideration of the benefit of the doubt, the Board finds that the Veteran's tinnitus cannot be reasonably disassociated from his active military service, and therefore service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Right and Left Knee Conditions Although they are listed separately, the Board will consider both the left and right knee conditions together as there is the same evidence in support of both claims of service connection. The Veteran contends that he developed right and left knee conditions in service that have worsened since his discharge and that both are attributable to his service-connected residual back strain with degenerative disc disease. A review of the Veteran's service treatment records does not show that the Veteran ever complained of right or left knee pain or any other symptoms of a knee condition, nor was he ever diagnosed with or treated for the same. There are copious records documenting the Veteran's complaints of and treatment for lower back pain while in service, but in none of these instances did the Veteran ever complain of knee pain. As stated, the Board does not have a copy of the Veteran's separation examination available for review. Post-service VA medical records show that the Veteran sought treatment for bilateral knee pain in January 2012, and was afforded an X-ray examination in May 2012 which showed degenerative changes in both knees. He was eventually diagnosed with degenerative joint disease with osteoarthritis in both knees and has received treatment for knee pain and stiffness ever since. The Veteran was afforded a VA examination in November 2014 to evaluate the nature and severity of his bilateral knee conditions. He reported experiencing chronic aching pain in both knees that began while in service and worsened in the years since. After a physical examination and a review of the claims file, the examiner confirmed the diagnosis of bilateral knee degenerative joint disease with osteoarthritis. The examiner then opined that it was more likely than not that the bilateral knee condition is related to the Veteran's age and body habitus then any event in service. In support thereof, the examiner noted that degenerative joint disease is multifactorial in origin and has risks factors including age, body habitus and heredity. The examiner highlighted the fact that the Veteran was overweight and was 53 years old at the time of the examination, and stated that it was not possible to define a nexus between the service connected back condition and the bilateral knee conditions. During both the September 2016 DRO hearing and the January 2017 hearing before the undersigned, the Veteran contended that he compensated for his back pain by supporting his body with his knees, putting additional strain on them. He specifically referred to certain training activities, including road marches and low crawls. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that the Veteran's bilateral knee conditions are attributable to service. To begin, the service treatment records do not document any complaints or treatment related to a knee condition, even though the Veteran consistently sought treatment for symptoms of a low back condition. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board can "weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Furthermore, the Veteran himself has maintained that his bilateral knee conditions did not manifest until after service. Accordingly, service connection for bilateral knee conditions on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. The analysis now turns to whether the Veteran is entitled to service connection for bilateral knee conditions as secondary to service-connected low back residuals with degenerative disc disease. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends generally that his bilateral knee conditions are due to compensating for his low back condition while in service. Although the Veteran is competent to testify as to his history of experiencing symptoms of knee pain, he has not shown the requisite training, credentials, or other expertise necessary to provide a competent opinion that the increased use of his knees while in service was due to a low back condition and resulted in the later development of bilateral knee conditions. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). He has presented, and the claims file does not otherwise contain, any medical evidence supporting a causal link between a bilateral knee condition and the service-connected low back condition. The only evidence directly addressing this question, the November 2014 VA examiner's opinion, is not supportive of the Veteran's contentions. Given the total dearth of evidence supporting a causal link, be it causation or aggravation, between the two disorders, the Board finds no basis for a grant of service connection for either knee under 38 C.F.R. § 3.310. The Veteran may still be entitled to service connection if all of the evidence establishes that the back condition was incurred in service. 38 C.F.R. § 3.303(d). Here, however, there is no evidence of incurrence in service, and there is a nearly 30 year gap between discharge and when the Veteran first sought treatment for symptoms of bilateral knee conditions. Furthermore, the Veteran's assertion that his bilateral knee conditions were aggravated permanently by the service-connected low back disability, supported as it is by no evidence in the claims file, is outweighed by the opinion of the November 2014 VA examiner, who found it far more likely that the bilateral knee conditions were attributable to the Veteran's age, weight, and body habitus. Thus, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's bilateral knee conditions are otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for bilateral knee conditions under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claims of entitlement to service connection for bilateral knee condition in total must be denied. As the preponderance of the evidence is against the Veteran's claims of service connection for bilateral knee conditions, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Hypertension The Veteran seeks service connection for hypertension. Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that the Veteran's hypertension is due to service. A review of the Veteran's service treatment records does not reveal any complaints, findings, treatment or diagnoses relating to hypertension. On the July 1980 induction examination, the Veteran's blood pressure reading was 120/70. While there is no separation examination to evaluate, a March 1983 outpatient record shows a blood pressure reading of 118/80 while an April 1983 record shows a reading of 108/72. None of these readings in service constitute a diagnosis of hypertension for VA purposes. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (defining hypertension as confirmed by readings taken two or more times on at least three different days) (2016). The Veteran has not submitted any additional medical evidence in support of a claim of hypertension on a direct basis, and during both the September 2016 DRO hearing and the January 2017 hearing before the undersigned he acknowledged that he was never diagnosed with high blood pressure in service. As hypertension is a disability that is demonstrated by blood pressure readings, it is not capable of diagnosis by a layperson without medical training and credentials. Accordingly, service connection for hypertension on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. Furthermore, although hypertension is listed as a chronic disorder under 38 C.F.R. § 3.309(a) and is thus eligible for presumptive service connection pursuant to 38 C.F.R. § 3.307(a)(3), there is no evidence that the Veteran manifested hypertension within a year, and therefore service connection on a presumptive basis is also denied. Post-service medical records show that the Veteran was diagnosed with hypertension in January 2012 when he sought treatment for knee pain. This was corroborated by the Veteran during the January 2017 hearing. Subsequent VA medical records indicate that the hypertension has been well managed with medication. The Veteran has not been afforded an examination in connection with his hypertension service connection claim, but VA does not have a duty to provide one here as there is no indication that hypertension may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA's duty to provide an examination only triggered if the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event). There is clear evidence in the file that the Veteran has hypertension, but there is nothing to support that the hypertension, which was first diagnosed nearly 30 years after his discharge, is attributable to service. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of his hypertension. Without any evidence in support of the Veteran's claim, the Board finds that service connection is not warranted pursuant to 38 C.F.R. § 3.303(d), and as such, the Board finds that service connection for hypertension is denied in total. As the preponderance of the evidence is against the Veteran's claim of service connection for hypertension, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). ORDER Service connection for tinnitus is granted. Service connection for a right knee condition, to include as secondary to a service-connected disability, is denied. Service connection for a left knee condition, to include as secondary to a service-connected disability, is denied. Service connection for hypertension is denied. REMAND Before the Board makes a determination as to the claim of entitlement to service connection for bilateral SNHL, further development of the record is necessary. The Veteran was afforded a VA audiology examination in November 2012 to evaluate the nature and etiology of his bilateral SNHL. The examiner found that the Veteran was an unreliable reporter of his hearing difficulties and thus determined that it was not possible to get valid testing results for the Veteran's pure tone conduction and speech reception. The examiner also referred to a July 2012 examination in which the examiner who administered that examination similarly concluded that the Veteran had unreliable testing results. After completing the in-person examination, the examiner declined to offer an opinion as to the etiology of the Veteran's potential bilateral SNHL. Although the examiner commented on in-service audiological testing which did not show that the Veteran had hearing loss at any time during service, they stated that they would be unable to determine the etiology of the SNHL without resorting to speculation. The Board cannot make a determination as to the Veteran's claim without an opinion regarding the nature and etiology of the bilateral SNHL that has a clear rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The Board also notes that recent VA treatment records document that the Veteran continues to report hearing difficulties, but it does not appear that his SNHL has ever been verified through audiological testing. Therefore, this claim must be remanded in order to offer the Veteran a new audiological examination to confirm whether he does have SNHL for VA purposes and if so, elicit an opinion as to the etiology of any potential SNHL. As for the claim of entitlement to service connection for a left ankle condition, the Veteran has not been afforded an examination in connection with the claim. Although there is no record of the Veteran having complained of symptoms of a left ankle condition in service, he has set forth the plausible theory that his left ankle condition was aggravated beyond its normal course by his service-connected low back disability. As there has been no examination evaluating this possible theory of entitlement, this claim must be remanded in order to elicit an opinion regarding whether the left ankle condition is attributable to the low back disability. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (The third prong of 38 C.F.R. § 3.159(c)(4), requiring only that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA audiological examination examinations to evaluate the nature and etiology of the Veteran's bilateral sensorineural hearing loss (SNHL). The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary special studies or tests must be accomplished. The examiner is asked to first determine whether the Veteran has hearing loss in either ear pursuant to the diagnostic criteria as set out in 38 C.F.R. § 3.385. If SNHL is confirmed in either ear, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the SNHL is related to the Veteran's active service. In setting forth this opinion, the examiner should take into consideration the Veteran's credible account of noise exposure while in service. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. 2. Schedule the Veteran for a VA medical examination to evaluate the nature and etiology of the Veteran's left ankle condition. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary special studies or tests must be accomplished. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's left ankle condition began in service or was caused by his active duty service. Next, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the left ankle condition is proximately due to, or aggravated by a service-connected disability, to specifically include the low back disability. The examiner should note that the term "aggravated by" refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. 3. After completion of the foregoing, readjudicate the claims. If either of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a supplemental statement of the case and afford him the appropriate time period for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (West 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs