Citation Nr: 1754514 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-34 293A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to July 1982 with subsequent periods of active duty for training (ADT) and inactive duty training (IDT) with the South Carolina Army National Guard until September 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and February 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran had a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is in the claims file. The issues of entitlement to service connection for hypertension and tinnitus 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's bilateral knee disability is not the result of an injury or disease incurred in or aggravated by active military service. 2. The Veteran's low back disability is not related to service. 3. The competent evidence of record does not establish that the Veteran currently has a bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107, (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) (2017). 2. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107, (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 33.307(a)(3), 3.309(a), 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, a VA examination was not obtained for the Veteran's low back disability claim. As discussed below, there is no persuasive medical or other competent evidence suggesting a nexus between a low back disability and service, or any other evidence that would warrant obtaining medical nexus opinion. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned with respect to the claims currently on appeal. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Veteran claims entitlement to service connection for a bilateral knee disability, low back disability and bilateral hearing loss. The regulations pertinent to the Veteran's service connection claims (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385) were provided to him in the 2013 statement of the case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. Initially, the Board notes that the Veteran has not claimed his bilateral knee disability, low back disability or bilateral hearing loss began during his National Guard service. Instead, he avers that his disabilities began during active duty service and he continued to complain of knee and back pain to a private physician during his National Guard service. Additionally, the Board notes there is nothing in his National Guard service treatment records that suggest any knee or back complaints or any injuries to the knees or back at any time during that service. Therefore, the Board finds no prejudice in adjudicating such claims in light of the herein remand to obtain National Guard service personnel records and to verify the dates of any periods of ADT or IDT. Bilateral Knees and Low Back The Veteran claims his bilateral knee disability and low back disability are related to his active duty service. Specifically, asserting during his November 2016 Board hearing that he injured his knees from road marches and physical training and injured his low back while carrying an 80 pound bag filled with communication equipment during road marches. He further claims he went to sick call for both conditions in service. Upon careful consideration of the Veteran's allegations in conjunction with all the evidence of record and applicable law and regulations, and for the reasons set forth below, the Board finds that the evidence weighs against the Veteran's service connection claims. Initially, the Board notes that the first post-service evidence in the record of osteoarthritis of the knees and lumbar spine was in December 2012. (See December 2012 VA treatment record noting "OA [osteoarthritis] lower back; knees). Thus, service connection for arthritis of the knees and lumbar spine on a chronic disease presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309 (2017). There is simply no evidence indicating either condition manifested within one year of service. Regarding his bilateral knee claim, the Board acknowledges that service treatment records reflect the Veteran was treated for a tibia condition in service and reported cramps in his legs. See December 1979 service treatment record (noting tibia pain); see also May 1982 report of medical history (in which the Veteran reported cramps in legs). However, the Board finds the July 2012 VA examiner's opinion highly probative. Indeed, after examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no objective data to support a contrary opinion. Although he had shin splints in service, this "did not predispose him to his currently complaints which are patellofemoral and degenerative in nature and have more than likely devloped [sic] over the last 30 years." The Board finds there is no competent, credible, or persuasive medical evidence of record to refute this opinion. Indeed, although the Veteran avers his bilateral knee disability is related to service, his allegations are not persuasive for the following reasons. First, while his service treatment records do show he complained of tibia pain and cramps in his legs, such complaints abruptly end after 1982. Indeed, in October 1985, February 1990, January 1994, June 1999, June 2001, and April 2004 reports of medical history, the Veteran did not report cramps in his legs, or any other knee problems. His silence on this point weighs heavily against the arguments he now makes of having continuous symptoms since service. The continuity issue is further refuted by a July 2006 private treatment record where he reported a two week history of bilateral leg pain. This statement was made prior to filing his claim for compensation, and the fact that he reported two weeks of symptoms rather than 20+ years of symptoms is important. All this evidence, in totality, weighs against the Veteran's credibility that such disability was the result of service. Therefore, the evidence thus weighs against a finding that the Veteran has a bilateral knee disability related in any way to service. Therefore, service connection must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the Veteran's low back disability claim, the Board recognizes the Veteran's assertion that he suffered back pain and a back injury in service. While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Service treatment records demonstrate no instances of low back complaints or treatment. The lack of any noted back pain in service particularly undermines the Veteran's credibility in this case considering the Veteran's service treatment records contain numerous complaints by the Veteran related to other medical problems. Examples of such medical complaints in service treatment records include leg pain, shortness of breath, sore throat, right foot blister and right eye pain. Furthermore, post-service medical records are silent as to any complaints of back pain or injury until March 2009. See March 2009 private treatment record (stating the Veteran reported back pain). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis, which weighs against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the Board notes there is no competent or credible medical evidence that low back symptoms were noted during service and persisted thereafter; it was not until many years after discharge that a low back disability was diagnosed. Additionally, while the Board recognizes the Veteran's assertions that he currently has a low back disability related to service, he is not competent to make this conclusion. Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, musculoskeletal issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Musculoskeletal issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible musculoskeletal issues, and a layperson is not competent to diagnose among them or to provide an etiology. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for a low back disability. Therefore, the evidence thus weighs against a finding that the Veteran has a low back disability related in any way to service. Therefore, service connection must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Bilateral Hearing Loss The Veteran contends in his November 2016 Board hearing that his bilateral hearing loss is related to service. Specifically, during service he worked in communications, but merged with infantry and artillery so periodically was around loud noises. He also worked with the field artillery unit. After service he worked in a steel mill. The Board notes his DD Form 214 lists his military occupational specialty as tactical wire operations specialist and he received the Army Service Ribbon and Rifle M-16 decorations. The record reflects the Veteran underwent a VA examination in April 2012. Audiometric results show that the Veteran does not have a hearing loss disability in either ear as defined for VA disability benefits purposes. Also the examiner found the Veteran had conductive hearing loss in the right ear and normal hearing in the left ear. Even if the VA examiner had diagnosed the Veteran with sensorineural hearing loss in both ears, the VA examination worksheet also contains a footnote that the Veteran "may have hearing loss at a level that is not considered to be a disability for VA purposes." Moreover, although the examiner found slight conductive loss at 6000 Hertz, this still would not indicate hearing loss for VA purposes. Indeed, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Furthermore, the April 2012 VA examiner opined that slight conductive loss at 6000 Hertz was not consistent with noise exposure. There are no other audiometric testing results in the record to indicate that the Veteran has a bilateral hearing loss disability and the Veteran acknowledged in his November 2016 Board hearing that he had not undergone other audiological testing. As there is no evidence of a current disability, there is no basis on which the claim for service connection may be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is therefore unnecessary to address any other element of service connection. Accordingly, the claim for service connection for bilateral hearing loss is denied. ORDER Service connection for a bilateral knee disability is denied. Service connection for a low back disability is denied. Service connection for bilateral hearing loss is denied. REMAND In this case, the Veteran avers he developed high blood pressure during his service in the National Guard. Specifically, asserting during his November 2016 Board hearing that he developed hypertension in the early 1990's and was unable to attend a two week summer camp due to his condition. Review of the record indicates that the Veteran served in the National Guard until September 2004. While the record reveals the Veteran's service treatment records during his reserve service have been associated with the claims file, the record is not clear as to whether complete personnel records were received. In addition, the record is silent for any indication that the AOJ attempted to verify periods of active duty for training or inactive duty for training. Indeed, the only reserve personnel records in the claims file are a June 1993 record noting the Veteran served on active training from August 14 through the 28, 1993, and an August 2004 record stating the Veteran was discharged from reserve service effective September 8, 2004. Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing AD or ADT, from an injury incurred or aggravated while performing IDT, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during a period of IDT. 38 U.S.C. §§ 101(24), 106, 1131 (2012). Therefore, remand is warranted to make a request for all National Guard service personnel records and for the AOJ to undertake any development necessary to verify the dates of any periods of ADT or IDT. Moreover, the Board notes the Veteran claims tinnitus related to service. The Veteran was afforded a VA examination in April 2012, in which the examiner found that while the Veteran reported tinnitus, it was less likely than not caused by or a result of military noise exposure explaining that onset of tinnitus was more than 25 years post-separation and research does not support late onset noise-induced damage to the auditory system. However, the examiner further opined that the Veteran had hypertension and took ototoxic medications, which "reported in the PDR [physician's desk reference] to cause tinnitus in some patients." Therefore, the Board finds the Veteran's claim of tinnitus to be intertwined with his herein remanded hypertension claim. Accordingly, the case is REMANDED for the following action: 1. Request all Reserve/National Guard service personnel records and associate them with the claims file. All efforts to obtain the records must be documented in the record and the Veteran informed and asked to submit any Reserve/National Guard records in his possession. 2. Contact the National Personnel Records Center (NPRC), the Defense Finance Accounting Service (DFAS) and/or any other appropriate source to verify any period of ADT or IDT. All records and/or responses received should be associated with the claims file. 3. After completing the above and any other development deemed necessary, readjudicate the remanded issues to include entitlement to service connection for tinnitus. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs