Citation Nr: 1800552	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-20 508A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for a bilateral knee disability, to include arthritis (claimed as bilateral knee pain).

2. Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

A. Boal, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1983 to September 1987, from August 1997 to April 1998, from January 2004 to December 2004, from June 2006 to June 2007 and from June 2009 to October 2010.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In May 2017, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran has a current bilateral knee disability.  

2. Symptoms of the Veteran's current knee disability first manifested during active duty service. 

3. The Veteran's current knee disability is more likely than not related to his active duty service.



CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral knee disability, to include bilateral knee degenerative arthritis, have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis 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 v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When there is an approximate balance in the 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 claimant.  38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017).  The Court has held that a Veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  See Gilbert, 1 Vet. App. at 53.  The U.S. Court of Appeals for Veterans Claims (Court) has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service Connection for Bilateral Knee Disability

The Veteran contends that he developed a bilateral knee disability as a result of his duties involving heavy lifting during service.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  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.  38 C.F.R. § 3.303 (d). 

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  While the disease need not be diagnosed within the presumptive period, it must be shown-by acceptable lay or medical evidence-that there were characteristic manifestations of the disease to the required degree during that time.

Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the service connection claims for bilateral knee disabilities.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  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. 38 C.F.R. § 3.303 (b).

The Veteran served in artillery and infantry units while on active duty.  The Veteran's service records are silent for recurrent complaints of bilateral knee pain, but the Veteran testified that he experienced bilateral knee pain throughout service due to physical exertion while carrying heavy equipment and doing other training exercises without knee pads.  

The Veteran's post-service private treatment records show that the Veteran has a current diagnosis of mild to moderate bilateral knee arthritis.  VA treatment records from February 2015 and April 2016 also contain notes from the Veteran's treating physicians indicating that the Veteran's bilateral knee arthritis is related to his active duty service.  For example, an April 2016 VA outpatient treatment record noted that the Veteran had significant arthritis in both knees that limits his exercise and physical activity and this is related to 20 years of infantry duty in the marine Corps. No rationale was provided for this conclusion. The Veteran also underwent an MRI in November 2016 which showed moderate patellar chondromalacia (arthritis), patella alta, and a tear of the posterior horn medial meniscus of the left knee.

Additionally, the Veteran attended a VA examination in July 2011 in which he confirmed that he his bilateral knee pain began during service in 2004 after an injury, and that he continues to feel pain as a result of his arthritis.  The VA examiner did not report an opinion regarding the etiology of the Veteran's bilateral knee arthritis.

The Board notes that, the Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Additionally, the Veteran is competent to report that he continued to experience pain in his knees since service as such would have been clearly observable to him.  Indeed, as a layperson, he is competent to report his own experiences and there is nothing in the record that contradicts these assertions.  Moreover, the Board has no reason to doubt the credibility of the Veteran's statements.

There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek clarification to obtain a rationale for the opinions that the knee pain is a result of service. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, the Board finds the medical opinions of the Veteran's VA treating physician highly probative of a positive nexus between the Veteran's current conditions and his active duty service. Additionally, the Veteran has consistently and credibly described pain in the knees since service.  Furthermore, there is no medical evidence suggesting that the Veteran's current bilateral knee disabilities are due to some other intercurrent cause.

In light of the medical and lay evidence of record, and resolving all reasonable doubt in the Veteran's favor, the criteria to establish service connection for bilateral knee disability, to include arthritis, are met, and the claims are granted.


ORDER

Entitlement to service connection for a bilateral knee disability, to include arthritis, is granted.

REMAND

The Veteran claims that he has hearing loss and that his hearing loss is related to his active service.  The medical evidence of record does not establish that the Veteran is entitled to service connection for hearing loss.  

The Veteran was afforded a VA examination in July 2011, over six years ago.  While he has had subsequent audiograms at VA facilities, these appear to use the W22 half list for word recognition instead of the Maryland CNC. Due to the length of time since the Veteran last underwent a full VA examination, the Board finds that a new VA examination is necessary to determine if the Veteran has hearing loss pursuant to 38 C.F.R. § 3385.  Therefore, this claim should be remanded so that the Veteran can obtain a new VA examination for his claimed hearing loss.  .

Accordingly, the case is REMANDED for the following action:

1. Arrange for the Veteran to undergo a VA hearing examination.

The entire claims file, including a copy of this remand, must be made available to, and be reviewed by, the examiner.

a) If the Veteran has hearing loss, determine whether it is at least as likely (a 50 percent or greater probability) as not that his hearing loss is related to his military service or any of his service connected disabilities.

The examiner must provide a complete rationale for his or her opinion with references to the evidence of record.

2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 


The Veteran 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. §§ 5109B, 7112 (2012).




______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs