Citation Nr: 1756816	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-08 016	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for right knee disability, to include as secondary to service connected Osgood Schlatter's disease in the left knee.


ATTORNEY FOR THE BOARD

JR Cummings, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1973 to February 1975.

This matter comes before the Board of Veteran's Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in which the RO denied the Veteran's claims for service connection for bilateral hearing loss, bilateral tinnitus, Osgood-Schlatter's disease of the left knee, and right knee pain and soreness.  Jurisdiction over this case was subsequently transferred to the RO in St. Paul, Minnesota.  

In July 2012, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in January 2014, and, in February 2014, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals).  The Veteran was granted service connection for his left knee condition in January 2014.  In the VA Form 9, the Veteran appealed the issues of service connection for tinnitus, bilateral hearing loss, and right knee pain.  Following a VA examination in May 2016, the RO issued a supplemental SOC (SSOC).

In June 2016, the Veteran submitted another VA Form 9 where the only issues marked for appeal were tinnitus and bilateral hearing loss, omitting the right knee disorder noted on the February 2014 VA Form 9.  However, only an explicit withdrawal will end the appeal to an issue.  Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant").  As such, the Board will also adjudicate the claim for service connection for right knee disability, as it is still on appeal.


FINDINGS OF FACT

1.  The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service noise exposure.

2.  The evidence is at least evenly balanced as to whether the Veteran's hearing loss in the left ear is related to in-service noise exposure.

3.  The Veteran does not currently have hearing loss in his right ear. 

4.  The preponderance of the evidence reflects that any right knee disability is not attributable to disease or injury in service or to a service-connected disease or injury.


CONCLUSIONS OF LAW

1.  With reasonable doubt resolved in favor of the Veteran, bilateral tinnitus was incurred in service.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  With reasonable doubt resolved in favor of the Veteran, hearing loss in the left ear was incurred in service.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

3.  The criteria for service connection for right ear hearing loss are not met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

4.  The criteria for service connection for right knee disability, to include as secondary to service-connected left knee disability, are not met.  38 U.S.C. §§ 1110, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93.  The requirements of the statutes and regulation have been met in this case.  VA notified the Veteran in March 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence he was to provide, what part VA would attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in May 2016.
 
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim and by affording the Veteran VA examinations in June 2011 and May 2016.  For the reasons indicated in the discussion below, these examinations were adequate to decide the claims.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.

The Board will therefore proceed to the merits of the appeal.

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  In order to prevail on the issue of service connection for any particular disability on a direct basis, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  See 38 C.F.R. § 3.310(a), (b).

The Board must assess the credibility and weight of all the evidence, including the medical and lay evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert supra.  To deny a claim on the merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

1.  Tinnitus

The Veteran contends that he has bilateral tinnitus due to military noise exposure as a lance missile crewman during his service in the Army.

The Court has held that "ringing in the ears is capable of lay observation."  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Veteran was treated for tinnitus in May 2010 and April 2011 where he reported exposure to loud noise during military service as a lance missile crewman and reported constant tinnitus with onset around 2001.  In a March 2012 private examination, the examiner noted that the Veteran reported gradual onset of tinnitus two years prior with constant frequency, rather than intermittent.  Finally, a May 2016 VA examination noted that the Veteran has had constant ringing in his ears starting 20-25 years ago and that it has gotten "really bad over the last ten years or so."  As such, the current disability requirement has been met.

In his July 2012 NOD, the Veteran noted that he expended a couple of hundred rounds of gunfire just during training and was exposed to thousands of rounds expended around him by his fellow trainees as a daily routine for several weeks.  He also stated that they would spend time on the machine gun range and grenade range as well as attendance at a demolition school for two to three weeks while serving in Germany where they learned how to destroy missiles, exposing them to acoustic trauma in the form of plastic explosives and sharp charges.

While serving in the Army, the Veteran drove the mobile launcher, powered by a Detroit diesel engine, in the cab located right beside it.  Traveling at a top speed of 45 mph with the engine turning around 3500 rpm and no rubber tires made the sound so deafening he could feel it.  The only ear protection provided were a pair of little plastic ear plugs that the Veteran claimed were not much help.  As such, the criteria for in-service acoustic trauma is met.

Regarding nexus, the third element required for service connection in this case, three separate medical opinions are present in the record.  First, the June 2011 VA examiner concluded it was less likely than not that the Veteran's tinnitus was caused by exposure encountered during military service because there was no documentation of complaints of tinnitus during service or at separation and the etiology of the tinnitus remains unknown due to the unknown effects of occupational and recreational noise exposure since separation.   

In a May 2013 Audio Disability Benefits Questionnaire (DBQ), the examiner opined that because the onset of the Veteran's tinnitus was approximately 2001, 38 years after discharge, the interval between noise exposure and the onset of tinnitus made the likelihood of other etiologies more possible.  As a result, the examiner concluded, it is less than likely that the Veteran's tinnitus was caused or aggravated by his exposure to military noise.  

Finally, in the aforementioned May 2016 VA examination, the examiner concluded that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure because there was no significant permanent threshold shift in either ear from enlistment to separation, no research supporting late onset noise-induced tinnitus, and the even likelihood that it's etiology was related to etiologies other than military noise including civilian occupational noise and a lifetime of right handed hunting.

However, the VA has recognized that the onset of tinnitus may not be immediate and can be triggered months or even years after the underlying cause occurred.  See VA Training Letter 10-02 (March 18, 2010).  All training letters have been rescinded and their summaries incorporated into VA's Adjudication Manual.  

In his July 2012 NOD, the Veteran argued that he was exposed to more gunfire in his first day of basic training than he was during his entire hunting career following service.  Additionally, in his February 2014 VA Form 9, the Veteran stated that contrary to the medical reports, the ringing in his ears has been present since his military service, that it has gotten worse over the last 10 to 15 years rather than having its onset during that time, thus reflecting that his tinnitus began in service.

The Veteran has offered competent and credible testimony that he experienced tinnitus in and since service.  The basis for the negative nexus opinions was the fact that documentation of tinnitus was many years after service, but the mere passage of time without medical evidence of a disorder is not in these circumstances itself a valid basis for a negative nexus opinion.  See Buchanan, 451 F.3d at 1336-37 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence").  Thus, because the medical opinions did not take into account the Veteran's lay statements, they are either inadequate or of limited probative weight.

For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's bilateral tinnitus is related to his in-service noise exposure.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself").

2.  Bilateral Hearing Loss

Hearing loss is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test (CNC) are less than 94 percent.  38 C.F.R. §3.385.

The 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 evidence pertinent to service, establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d).

Turning to the evidence of record, an audiogram conducted during the Veteran's June 2011 VA examination showed the following puretone threshold values for the Veteran (in dB) and speech recognition thresholds:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
15
15
15
15
30
100
LEFT
20
15
20
25
60
100

As noted, in order to be considered a disability for VA purposes, the decibels for any of the above frequencies must be 40 or greater, or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater, or speech recognition thresholds using the Maryland CNC Test are less than 94 percent.  Here, the Veteran's auditory threshold in his right ear was never 40 decibels or higher and was only higher than 26 decibels once.  Additionally, the Veteran's speech recognition threshold according to the CNC Test was 100 percent.  However, the Veteran's auditory threshold in his left ear is 60 decibels at 4000 Hertz.  As a result, hearing loss disability in the left ear for VA purposes is present and the criteria for a current disability is met.

The Veteran's statement in his NOD regarding in-service noise exposure while serving as the driver of a mobile missile launcher satisfies the in-service requirement.  Similarly, like tinnitus, the Veteran claimed in his VA Form 9 that his hearing loss started during military service and has been present ever since.  

In the June 2011 VA examination, the examiner noted it was less likely than not that the Veteran's hearing loss was related to military service for the same reasons he found tinnitus less likely than not, as did the examiner in the May 2016 VA examination.  However, neither examiner took into consideration statements by the Veteran that he has been experiencing hearing loss since he left the military.  As a result, the probative weight of the medical opinions is diminished.  See Buchanan, supra.

The evidence is thus at least evenly balanced as to whether the Veteran's hearing loss in the left ear is related to his in-service noise exposure.  As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hearing loss in the left ear is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself").

With regard to the Veteran's right ear, on the May 2016 VA examination audiometric and speech recognition results were as follows:
 

HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
15
10
15
20
35
100
LEFT
15
10
15
25
60
100

Here, the Veteran's auditory threshold in his right ear is higher than 26 decibels only at 4000 Hz never eclipses 40 dB.  Additionally, the Veteran's speech recognition threshold according to the CNC Test was 100 percent.  Considering at least one of the readings at these frequencies must be 40 dB or greater, at least three of them must be 26 dB or greater, there is no current hearing loss disability for VA purposes in the Veteran's right ear.  Thus, the criteria required to establish a current disability for hearing loss of the Veteran's right ear are not met, and the claim must be denied.   

3.  Right Knee Disability

The Veteran claims that his right knee pain and soreness is secondary to his service connected Osgood-Schlatter's disease in his left knee.  

The Veteran stated in his June 2011 VA examination that he had intermittent pain flares every couple of months for a week at a time that resulted in sharp pain.  The examiner noted mild grinding and popping of the knee with range of motion, but the range of motion was normal otherwise with flexion rated at 0 to 140 degrees (140 is normal) and extension from 140 to 0 and found no significant right knee abnormalities that would correlate with the symptoms.  The examiner concluded there was no current disability in the Veteran's right knee.  

In March 2012, a private examiner noted no deformity in the Veteran's right knee and full range of motion.  In a May 2016 VA examination, the Veteran denied a history of right knee injury and pain, but noted instability and 'right knee problems' that began 10-15 years prior.  Like the private examination before, the VA examiner also noted normal flexion, extension and range of motion.

In his July 2012 NOD, the Veteran stated that after a lifetime of favoring his left knee, he felt he had put more work on his right knee causing current pain, however the Veteran repeatedly throughout his examinations denied current pain and demonstrated full range of motion in his right knee.  The Veteran stated in his February 2014 VA Form 9 that his right knee has been affected by favoring his left knee, but didn't know how to convey it to anybody.    

The record is absent the showing of a diagnosis for the right knee and service treatment records are silent regarding treatment for the right knee.  Aside from statements that the Veteran was currently experiencing some instability and began experiencing problems in his right knee 10-15 years ago, VA examinations show no evidence of current pain at rest or with movement and full range of motion.  

The question of whether symptoms such as pain or instability could constitute a disability for purposes of the VA compensation laws and regulations is one that the courts have not definitively answered.  See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C. §§1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing question, but not one that we need or can decide in this appeal").  However, in Sanchez-Benitez, the Federal Circuit held that, in order for a Veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a Veteran must prove the existence of a disability that has resulted from a disease or injury that occurred in service.  Id. at 1361-62.  Thus, a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury."  Id.  In this case, the above evidence and analysis reflects that the Veteran's symptoms of right knee pain and instability are not due to disease or injury.  It follows that they are not due to disease or injury in service or caused or aggravated by service connected disease or injury.

For the foregoing reasons, the criteria required for service connection for right knee pain and soreness, to include as secondary to the service-connected left knee disability, have not been met.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.




ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for hearing loss in the left ear is granted.

Entitlement to service connection for hearing loss in the right ear is denied.

Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability, is denied.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs