Citation Nr: 1804851	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-10 971	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for a left knee disability, to include as secondary to service-connected pes planus.

3.  Entitlement to service connection for a right knee disability, to include as secondary to service-connected pes planus.


ATTORNEY FOR THE BOARD

J. Gentile, Associate Counsel






INTRODUCTION

The Veteran had active military service from April 2008 to August 2011, to include service in Iraq.

These matters come to the Board of Veteran's Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  This appeal originally included a claim for service connection for bilateral hearing loss.  However, a March 2017 rating decision granted the Veteran service-connection for left ear hearing loss.  This is considered a complete grant of benefits for left ear hearing loss so only right ear hearing loss will be considered as part of this appeal.  

The Veteran requested a hearing before the Board in connection with this appeal, but withdrew that request in April 2014.  There is no hearing request pending.


FINDINGS OF FACT

1.  The Veteran does not have sensorineural hearing loss (SNHL) in his right ear. 

2.  The Veteran does not have a current disability of the left or right knee.  


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for right ear hearing loss have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).  

2.  The criteria for entitlement to service connection for a left knee disability have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017).  

3.  The criteria for entitlement to service connection for a right knee disability have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Generally, to establish service connection, a claimant 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).  A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.

VA has established certain rules and presumptions for chronic diseases such as arthritis and organic diseases of the nervous system like sensorineural hearing loss.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. § 3.303(b).  In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).

	Right Ear Hearing Loss

The Veteran asserts that he experiences hearing loss in his right ear because of his exposure to acoustic trauma in service.  In particular, the Veteran reports exposure to small arms and artillery while on active duty.  

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 or 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 (2017).  The threshold for normal hearing is 0 to 20 decibels.

In early April 2008, the Veteran had an audiogram hearing test as part of his entrance physical.  The pure tone thresholds for the Veteran's right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
10
5
35

In April 2008, the Veteran had another audiogram hearing test.  The pure tone thresholds for the Veteran's right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
-5
5
0
5

In December 2010, the Veteran had an audiogram hearing test.  The pure tone thresholds for the Veteran's right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
15
5
0

In July 2011, the Veteran had a hearing test at his exit physical.  The pure tone thresholds, in decibels, for the Veteran's right ear were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
15
5
0

In March 2012, the Veteran had an audiogram hearing test.  The pure tone thresholds for the Veteran's right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
0
10

The Veteran's speech discrimination score using the Maryland CNC word list for his right ear was 100 percent.

In January 2014, the Veteran had an audiogram hearing test.  The pure tone thresholds for the Veteran's right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
-5
5
0
5

In February 2017, the Veteran had an audiogram hearing test.  The pure tone thresholds for the Veteran's right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
10
15

The Veteran's speech discrimination score using the Maryland CNC word list for his right ear was 98 percent.

The Veteran's hearing examinations indicate that the Veteran does not have right ear hearing loss for VA purposes.  38 C.F.R. § 3.385.  In the absence of proof of a present disability, there is no valid claim presented.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Since the competent evidence does not show hearing loss for VA purposes, service connection is not warranted for this disorder.

While the Board notes that the Veteran states he experienced some noise exposure during active duty service, as there is no current disability for VA purposes, there can be no link between the in-service exposure and a current disability.

While the Veteran can attest to subjective hearing loss, the Veteran is not competent to provide an objective determination of the level of hearing loss, as required under 38 C.F.R. § 3.385.  In this instance, the Board finds that the medical evidence is more probative than the Veteran's lay statements with regard to the issue of entitlement to service connection for right ear hearing loss and finds that the Veteran does not have a current hearing disability in his right ear.

The Board has considered the applicability of the benefit of the doubt doctrine.  Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply.  See 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990).

	Knees

The Veteran's service treatment records show that he reported left knee pain in August 2008 and he reported right knee pain in January 2009.  The Veteran was placed on a rehabilitation plan to help him overcome knee pain in January 2009.  At that time, the cause of the knee pain was noted as lateral QT tightness on the patella, ITB tightness, malalignment of the patella, and improper sneaker wear.  The Veteran's July 2011 separation examination showed a normal clinical evaluation of the lower extremities.  

In September of 2012, the Veteran was afforded a VA examination to determine the nature and etiology of right and left knee disabilities.  The Veteran reported that he feels the impact of running in both knees and reports that running causes pain in his knees and feet.  The examiner diagnosed the Veteran with normal bilateral knees.  Treatment records do not contain any diagnoses of a disability of either knee and the Veteran is not competent as a lay person to diagnose himself with a current knee disability.  As the evidence is against a finding that the Veteran has a currently diagnosed left or right knee disability, the claims for service connection on direct and secondary bases must fail.  See Brammer, 3 Vet. App. 223; Rabideau, 2 Vet. App. 141.  

As the Veteran served in Iraq, service connection can also be awarded for certain disabilities occurring in Persian Gulf veterans.  38 C.F.R. § 3.317.  However, one of the requirements for service connection under that regulation is that indications of a qualifying chronic disability, which could include joint pain, must manifest to a degree of 10 percent or more.  38 C.F.R. § 3.317(a)(1)(i).  In this case, at his examination the Veteran had full range of motion of the knees with no instability, meniscal problems, or functional impairment, which would not warrant a compensable rating based on the criteria for rating the knees.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263 (2017).  A compensable rating can also be awarded based on painful motion of the joint.  38 C.F.R. § 4.59 (2017).  However, at the examination the examiner specifically noted there was no evidence of painful motion.  As the Veteran's joint pain has not manifest to a degree of 10 percent or more, service connection cannot be awarded under 38 C.F.R. § 3.317.    











      (CONTINUED ON NEXT PAGE)

ORDER

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

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for a right knee disability is denied.




______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs