Citation Nr: 1803440 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-15 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability. 3. Entitlement to an evaluation in excess of 10 percent for a left knee disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to March 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied an increased evaluation for a left knee disability, and found that new and material evidence had not been submitted to reopen the Veteran's claims for service connection for hearing loss and a right knee disability. The Veteran filed his Notice of Disagreement (NOD) with that decision in June 2008. In January 2013, the Board reopened the claims for service connection for hearing loss and a right knee disability, and found that entitlement to a TDIU was raised by the record. In a February 2010 rating decision, the RO denied service connection for acne, chloracne, posttraumatic stress disorder (PTSD), and diabetic neuropathy. The Veteran was issued a Statement of the Case (SOC) in March 2010 for the issues of entitlement to service connection for hearing loss, a right knee disability, tinnitus, and an increased evaluation for the left knee disability. On an April 2010 VA Form 9, the Veteran indicated that he wished to appeal all of the issues on the SOC and handwrote "and below" and listed cysts. The Board liberally construed that document as an NOD with the February 2010 rating decision denying service connection for cyst and in May 2016 the Board remanded the matter in order to provide the Veteran with a SOC. Thereafter, in a July 2017 Appeal Process Request Letter the Veteran was informed that his February 2010 NOD was received and in September 2017, the RO issued a SOC. To date, the Veteran has not perfected an appeal from the September 2017 SOC and the issue of entitlement to service connection for cysts (also claimed as acne and chloracne) will not be addressed. Additionally, the Board notes that a March 2010 rating decision granted a 10 percent evaluation for left knee instability, effective October 20, 2009, in addition to the 10 percent evaluation that the Veteran was currently receiving for left knee surgical residuals, effective January 1, 1981. In a June 2017 rating decision, the Veteran's left knee instability rating was increased from 10 percent to 20 percent, effective July 27, 2016, and he was also granted service connection for status post left knee meniscal tear and osteoarthritis with an evaluation of 10 percent, effective July 27, 2016. As these increases do not represent a total grant of the benefits sought on appeal, the claim for left knee increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Since the September 2014 Supplemental Statement of the Case (SSOC) additional relevant evidence has been associated with the claims file, including a July 2016 VA knee examination report; however, the AOJ did not readjudicate the Veteran's claim for increased rating for left knee and no waiver was received. In light of the foregoing, the left knee issue on appeal must be remanded for a SSOC. As the Veteran's TDIU claim is inextricably intertwined with his increased rating claim, the TDIU issue is also remanded. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In February 2016, the Veteran testified at a Travel Board hearing before a now retired Veterans Law Judge (VLJ). A transcript of the hearing is of record. In an October 2017 letter, the Board notified the Veteran that the VLJ who conducted his February 2016 hearing had retired. This letter gave the Veteran the option of electing a new hearing before a different VLJ who would ultimately decide his claims and indicated that if no response was received within 30 days, the Board would proceed without a hearing. See 38 C.F.R. § 20.707 (2017). To date, no response has been received from the Veteran and the Board will proceed with the adjudication of the claims. These matters were previously remanded in January 2013, April 2015, and May 2016. The Board regrets the additional delay, but the issues of increased rating for a left knee disability and TDIU are again, REMANDED to the AOJ and are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not causally or etiologically related to service. 2. The Veteran's currently diagnosed right knee disability is not causally or etiologically related to service. 3. The Veteran's currently diagnosed right knee disability is not caused or aggravated by his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for the bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised 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 duty to assist argument). II. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Organic diseases of the nervous system (to include sensorineural hearing loss and tinnitus) may be service-connected on a presumptive basis if manifested to a compensable degree within one year after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (the Court) held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus ... as an 'organic disease[s] of the nervous system.'" Fountain v. McDonald, 27 Vet. App. 258 (2015). Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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. The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss Analysis The Veteran has a bilateral hearing loss disability for VA purposes. See July 2016 VA audiological examination report. With regard to the second element of service connection, an in-service incurrence or aggravation of a disease or injury, the Veteran reported acoustic trauma while under artillery fire in 1970 and while in basic training. See September 1977 Statement in Support of Claim and December 1977 NOD. The Veteran's military occupational specialty (MOS) was records specialist with related civilian occupation of personnel clerk. See Form DD 214. Service treatment records (STRs) include a July 1968 audiometric testing results at service entrance which revealed puretone thresholds in decibels recorded as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 40 35 40 50 Left 30 20 20 20 20 STRs do not include audiometric testing results at service separation. The Board notes that the Veteran is service connected for tinnitus and acoustic trauma has been conceded. Thus, element two has been satisfied. Turning to the third element of service connection, nexus, the record includes a November 1980 letter, wherein Dr. A, the Veteran's private physician, noted that the Veteran was seen by his office in February 1976 and the audiometric puretone thresholds in decibels were recorded as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 40 35 40 50 Left 30 20 20 20 20 Speech discrimination scores were listed as 96 percent in the right ear and 100 percent in the left. Dr. A. explained that the examination showed mixed hearing loss and signs of a nerve loss (greater in the right ear than the left) and conductive hearing loss related to mild Eustachian tube dysfunction in the right ear. Subsequently, a myringotomy and tube were placed in the right ear to relieve the Eustachian tube dysfunction. He opined that the nerve loss in both ears was permanent in nature and not amenable to treatment, and that hearing loss would not be expected given that the Veteran was 27 years old at the time of examination and thus the hearing loss could be due to noise exposure. The Board finds Dr. A. competent and credible. However, the Board notes the opinion is too speculative to support a grant of service connection. See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). Moreover, although Dr. A. noted that the Veteran had signs of a nerve loss (greater in the right ear than the left) and conductive hearing loss related to mild Eustachian tube dysfunction in the right ear, he did not establish that the Eustachian tube dysfunction was related to service. Accordingly, reduced probative value is assigned. The November 2013 VA audiological examiner opined that the Veteran's right ear hearing loss was not as least as likely as not (50 percent probability or greater) caused by caused by or a result of an event in military service. The examiner explained that the Veteran served in the Army from June 1968 to March 1971 as a personnel specialist. STRs were silent for reports of or treatment for hearing loss. The Veteran denied hearing loss in April 1971. The Veteran sought medical treatment for hearing loss in 1976 as supported by a letter from his private Ear nose and Throat clinic dated November 1980 in the Veteran's electronic medical chart. Although no audiometric data is available, the letter stated the Veteran received treatment for a mixed hearing loss greater in the right ear than the left. The examiner explained that mixed hearing loss indicates both conductive hearing loss which is temporary and can be treated with medical intervention and nerve damage which is permanent. The Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely". The examiner determined that there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the veteran's military service, including noise exposure. The Board finds the examiner competent and credible and affords reduced probative weight as the examiner did not provide a left ear etiology opinion. The August 2014 VA audiological examiner opined that the Veteran's right ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner explained that the Veteran served in the Army from June 1968 to March 1971. Upon enlistment in August 1968, hearing was within normal limits for the right ear. As concluded by Dr.W., no records were located indicating any treatment for hearing loss during Veteran's military service. A hearing test was not recorded on the Veteran's separation exam, although, according to Dr. W.'s report, the Veteran denied hearing loss upon separation in 1971. Records were located indicating that Veteran sought treatment for hearing loss in July 1976 at a private Ear, Nose, & Throat (ENT) facility. Audiometric testing revealed that only the right ear was tested at that time. A letter from his private ENT from 1980 stated the Veteran received treatment for a mixed hearing loss, greater in the right ear than the left. The audiogram from his private ENT from 1976 documented "poor Eustachian Tube function" for the right ear. A mixed hearing loss is indicative of a temporary condition, and ratings are not made on temporary conditions. The August 2014 VA audiological examiner indicated that with regard to the Veteran's left ear, the there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear and the examiner indicated that she could not determine a medical opinion regarding the etiology of the Veteran's left ear hearing loss without reporting to speculation. The examiner explained that the Veteran presented with normal hearing for the left ear upon entrance into the Army in August 1968 and no records were located indicating any treatment for hearing loss during Veteran's military service. A hearing test was not recorded on Veteran's separation exam, although, according to Dr. W.'s report, the Veteran denied hearing loss upon separation in 1971. The Board finds the August 2014 examiner competent and credible and affords reduced probative weight as the examiner does not provide a thorough rationale with regard to the 1980 private ENT findings. The July 2016 VA audiological examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner explained that the Veteran had normal hearing on his entrance exam in August 1968. He did not have a hearing exam as part of his separation exam. However, he denied hearing loss on his separation exam. His records are silent for hearing loss and there are no records indicating that the Veteran sought treatment for his hearing loss during military service. His MOS was personnel specialist which has a low probability for hazardous noise exposure. After military service, the Veteran became a nurse in 1976. Shortly after becoming a nurse in 1976, he began having chronic ear infections. This is the first time he sought treatment for his ears, or hearing loss. This was five years after separating from the military. At that time, he was diagnosed with poor Eustachian tube function in the right ear at a private ENT facility. Poor Eustachian tube function is indicative of an ear infection. In 1980, a letter from his private ENT stated that the Veteran was treated for mixed hearing loss with right worse than left. This is consistent with ear infections in both ears. The letter also stated that hearing loss is worse than would be expected for the Veteran's age. However, the hearing loss was not worse than would be expected for the Veteran's age given he has a history of chronic ear infections as evidenced by test results from 1976, by the letter from 1980 by private ENT, and by the Veteran's own report of chronic ear infections from 1976 to the early 1990s requiring multiple sets of pressure equalization tubes (i.e. tubes in both ears). A person of any age, including a child, would have worse hearing than expected for their age if they have a history of chronic ear infections as this Veteran did. The permanent nerve loss mentioned in this 1980 letter by his ENT cannot be attributed to his military service based on all the available evidence which includes: (1) records are silent for hearing loss & the Veteran never sought treatment for hearing loss during military service from 1968 to 1971; (2) the Veteran, himself denied hearing loss on his 1971 separation exam; and (3) the Veteran began having chronic (i.e., re-occurring) ear infections after becoming a nurse in 1976, five years after military service, and these continued until the early 1990s requiring multiple sets of pressure equalization tubes. Fifteen years of chronic ear infections and pressure equalization tubes can cause permanent hearing loss. The examiner opined that it is likely than not that the Veteran's current hearing loss is a result of his chronic ear infections that began five years after he separated from the military rather than as a result of anything that occurred during military service. The examiner also opined that it is not likely that anything that occurred in military service caused the Veteran's ear infections, especially since ear infections usually occur immediately or shortly after being exposed to bacteria. Therefore, ear infections that began in 1976 would not have been a result of something that happened between 1968 and 1971, five to eight years prior, when the Veteran was in the military. The examiner further indicated that it should also be noted that ear infections cannot be caused by noise exposure. The examiner concluded that based on all available evidence mentioned above, the Veteran's current hearing loss is less likely than not caused by or a result of anything that occurred during military service. The examiner opined that it is less likely as not that the Veteran's current hearing loss disability had its onset in or is related to any in-service disease, event, or injury, including noise exposure and it is less likely than not that Veteran's current hearing loss manifested to a compensable degree within one year of service discharge. The Board finds the VA examiner competent and credible and affords probative weight as the examiner provided a through rationale addressing the November 1980 private doctor's letter and 1976 audiology results. Additionally, the examiner provided an adequate rationale explaining an alternate etiology of the Veteran's hearing loss disability. Accordingly, probative weight is assigned. Consideration has been given to the lay evidence of record relating bilateral hearing loss symptoms to service. The Veteran is competent to describe his hearing loss symptoms. However, he is not competent to relate his hearing loss to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard it is noted that the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Moreover, as discussed, the most probative medical evidence of record, the clinical records and VA examination, do not support Veteran's contentions. In sum, the weight of the evidence shows that the Veteran's bilateral hearing loss is unrelated to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim of service connection for the hearing loss, that doctrine is not applicable. 38 U.S.C.§ 5107(b). Right Knee Analysis The Veteran contends that he has a right knee disability due to overusing it because of impairment caused by his service-connected left knee disability. See September 1989 Statement in Support of Claim and February 2008 NOD. The Veteran has a current diagnosis of right knee degenerative joint disease and July 2016 radiographic imaging revealed mild degenerative changes of both knees. See July 2016 VA knee examination report. Therefore, the first service connection element, current disability, on a direct and secondary basis has been met. Turning to the second element of service connection, with regard to direct service connection, an in-service incurrence or aggravation of a disease or injury, STRs include a March 1971 Report of Medical Examination which indicated normal lower extremities and an April 1971 Report of Medical History for Disability Evaluation special orthopedic examination note indicated there was no deformity of the right lower extremities. With regard to the second element of service connection on a secondary basis, service-connected disability, the Veteran is service-connected for a left knee disability. Based on the above, the second element of service connection on a direct basis has not been met, but the second element on a secondary basis has been satisfied. Finally, the Board finds that the record does not support the third element of service connection on a direct or secondary basis. Significantly, the October 2013 VA knee examiner opined that the Veteran's claimed right knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran reported surgical left knee meniscectomy in 1968, but pain did not develop in the right knee until 1975. The Veteran had seven years post surgery, before complaints of right knee pain. The Veteran's left knee surgery should have relieved the weight that he placed on his right knee, decreasing the pressure and pain. The Veteran's left knee meniscus tear and surgery did not cause right knee pain of today. Right knee flexion measured 0-140 degrees, without pain. There are no current (2013 or 2012) progress notes, within VA records, private primary care physician or orthopedics for treatment of right knee pain. The Board finds the examiner competent and credible but affords reduced probative value as the examiner did not address whether the right knee disability was caused by his service-connected left knee disability. The July 2016 VA knee examiner opined that the Veteran's right knee condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no evidence that he had right knee problems in service. He reported that his right knee started to give him trouble about two years after he left the service. For many years he wormed in an active job which would apply stresses on the knees. His knee examination was normal and x-ray showed minimal degenerative joint disease consistent with age 67. He is obese with a body mass index (BMI) of 36.36, which would magnify the knee problems. The examiner further opined that the Veteran's right knee condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left knee condition. The examiner explained that the left knee is near normal to examination and he has minimal degenerative joint disease with limp. Such a knee would not impose additional stress on other joints. The right knee is normal on examination and has minimal findings of degenerative joint disease consistent with age 67. The Veteran has additional stressors on the right knee including an active occupation for 40 years and obesity with a BMI of 36.36. The examiner noted that a baseline of severity for the right knee could be determined but was irrelevant because no aggravation had occurred. The Board finds the examiner competent and credible and affords probative weight as the examiner provided thorough rationales and adequately discussed the Veteran's right knee etiology as it relates to service and his service-connected left knee disability. The Veteran has submitted no competent nexus evidence contrary to the VA examiners' opinions. Consideration has been given to the Veteran's lay assertions regarding continuity of symptoms. However, the Board finds the lay evidence is far less probative than the opinions of the VA professionals, as the VA medical opinions are far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. Further, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for a low back condition is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. Service connection for a right knee disability is denied. REMAND With regard to the Veteran's claim for increased rating for a left knee disability, as noted in the Introduction of this decision, since the September 2014 SSOC additional relevant evidence has been associated with the claims file, including a July 2016 VA knee examination report. However, the AOJ has not readjudicated the Veteran's increased rating claim and a waiver has not been submitted by the Veteran. In light of the foregoing, the left knee issue on appeal must be remanded for a SSOC. Moreover, as the Veteran's TDIU claim is inextricably intertwined with his increased rating claim, the TDIU issue is also remanded. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Conduct any necessary development for the left knee and TDIU claims, to include providing the Veteran with a TDIU application (VA Form 21-8940) for his completion and submission. 2. Then, reajudicate the left knee and TDIU claims. If any benefit sought is not granted, provide the Veteran and his representative with a SSOC and allow them an appropriate time to respond thereto before returning the case to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs