Citation Nr: 18141000 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-37 101 DATE: October 9, 2018 ORDER Entitlement to service connection for right ear hearing loss disability is denied. Entitlement to service connection for left ear hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s service treatment records (STRs) are negative for complaints of hearing difficulty, tinnitus, or of the right knee. 2. The most probative evidence is against a finding that the Veteran has a right ear hearing loss disability for VA purposes. 3. The Veteran’s STRs reflect that he had abnormal left ear hearing upon entrance, and do not reflect an increase in severity in service. 4. The earliest post-service complaints of hearing difficulty and/or tinnitus are not for more than four decades after separation from service. 5. The earliest post-service complaints of the right knee are not for more than three decades after separation from service. 6. Bilateral hearing, tinnitus, and right knee disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disabilities are not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for left ear hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.306, 3.307, 3.309(a). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1969 to October 1970. These matters come before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Albuquerque, New Mexico. The Board notes that updated VA treatment records were added to the claims file after the statement of the case (SOC) and after certification to the Board for which there is not an automatic waiver of AOJ consideration. Nevertheless, a remand for the AOJ to issue an SSOC is not necessary for the claims decided herein because the records contain the same information as that established in other records reviewed by the AOJ in connection with those claims. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include degenerative joint disease, and to include hearing loss disability and tinnitus, as organic diseases of the nervous system, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b).   Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 1. Entitlement to service connection for right ear hearing loss disability The Veteran contends that he has a right ear hearing loss disability causally related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). An April 2014 VA examination report reflects that pure tone air thresholds, in decibels, were as follows HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 20 15 25 The word recognition score was 96 percent for the right ear using the Maryland CNC word list test. Based on the above, the Board finds that the Veteran does not have a right ear hearing loss disability for VA purposes because he does not have an auditory threshold of 40 decibels or greater in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz, does not have a threshold of 26 decibels or greater for at least three of these frequencies, and does not have a speech recognition score using the Maryland CNC Test of less than 94 percent. The claims file also includes a September 2013 private examination report from Las Cruces Hearing Center; however, it also is against a finding that the Veteran has a right ear hearing loss disability for VA purposes. The Board acknowledges the statement of the appellant’s representative in a May 2016 brief that the 2013 private record reflects a speech discrimination score of 94 percent in the right ear, and the Board notes that this was using the Maryland CNC test. However, a 94 percent result is not a VA disability. Under 38 C.F.R. § 3.385, for a disability for VA purposes, the speech recognition score must be less than 94 percent. While Veteran may believe that he has a current diagnosis of right ear hearing loss for VA purposes, he has not been shown to possess the requisite skills or training necessary to be capable of making precise diagnostic evaluations necessary for a finding of a hearing loss disability for VA purposes, which is based on numeric test results. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence which weighs against a finding that he has a right ear hearing loss disability for VA purposes. 2. Entitlement to service connection for left ear hearing loss disability The Veteran entered service in 1968. His October 1968 Report of Medical Examination reflects that upon audiometric testing, his hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 5 -5 -5 15 In the 1960’s, the military changed its standard of measuring hearing acuity. The American Standards Association (ASA) units were replaced with the current International Standards Organization (ISO) -American National Standards Institute (ANSI) units. Prior to January 1, 1967, the Board assumes that the ASA standard was used; between January 1, 1967 and December 31, 1970, if the standard is not identified, the Board will consider the data under both ASA and ISO-ANSI standards and use the one most beneficial to the Veteran; after December 31, 1970, the Board will assume the ISO-ANSI standard was used. To convert ASA units to ISO units, 15 decibels are added at the 500 level, 10 are added at the 1000, 2000, and 3000 levels, and 5 are added at the 4000 level. Thus, assuming the Veteran’s results were recorded using the ASA standard, the Veteran had a preexisting left ear hearing loss disability for VA purposes because he had a 40 decibel threshold at the 500 frequency. Because the Veteran had a preexisting disability noted upon entrance, service connection is only possible on the basis of aggravation. A pre-existing injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The Veteran separated from service in 1970. Whispered voice testing was performed at that time which indicated no hearing loss was noted. There are also no service treatment records (STRs) which reflect complaints of hearing difficulty or a decrease in hearing acuity. There is no competent credible evidence of record of a threshold shift in service in the left ear. The Veteran, while competent to report hearing difficulties, is not competent to report specific threshold shifts. Moreover, he has stated that he noticed his hearing loss in the mid-1970s, several years after separation from service (see September 2013 private audiology report). As there was no competent credible evidence of a threshold shift, the Veteran’s pre-existing hearing loss disability did not increase in severity in service. Thus, service connection is not warranted. In being mindful that VA disability compensation is a Veteran-centric program, the Board has also considered that the Veteran’s 1968 audiometric results were under the ISO-ANSI standards; however, neither the ASA standard nor the ISO-ANSI standard changes the outcome of the Board’s decision in this Veteran’s claim. The Court in Hensley v. Brown, 5 Vet. App. 155, 157 (1993) noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. If the Veteran’s 1968 findings were in ISO-ANSI units, he had abnormal hearing at entrance because he had greater than 20 decibels at the 500 frequency; however, he did not have a disability for VA purposes. There are no records in the four decades after separation from service noting that the Veteran had complaints of hearing difficulty. The earliest evidence that the Veteran noticed hearing difficulty is a September 2013 audiological evaluation report which reflects that the Veteran reported that he first noticed having some difficulty with hearing in the mid-1970s; this would have been several years post service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes that the 2014 VA examiner opined that the Veteran had a preexisting hearing loss disability based on his threshold at the 6000 frequency, which is not used in determining a VA disability; however, when looking at the medical report as a whole, and with consideration of the rationale provide with regard to the right ear, the Board finds that the VA clinician’s opinions satisfy the need for an opinion for both the right ear and the left ear. The clinician opined that because the Veteran’s separation examination includes only “whispered voice” testing, it is unknown whether Veteran experienced any significant (i.e. 15 dB or greater) threshold shifts during his service period; thus, there is no objective evidence upon which to form a basis for an opinion. The Board also notes that there is no subjective evidence contemporaneous to service upon which to base an opinion because the STRs are negative for complaints of hearing difficulty and there is no other evidence in service indicating hearing difficulty. Moreover, when first reporting an onset date for hearing difficulty post service, the Veteran indicated it was several years post service. The Board also acknowledges the contention of the representative that pursuant to Hensley v. Brown, 5 Vet. App. 155, 157 (1993), VA regulations do not necessarily preclude service connection for hearing loss that first met the requirements of 38 C.F.R. § 3.385 after service. However, while the regulation does not necessarily preclude service connection when hearing loss first meets the regulation’s requirements after service, it also does not hold that service connection is warranted, or mandatory, for hearing loss disability in the absence of competent credible clinical nexus opinion, or competent credible evidence of continuity of symptoms. Finally, the Board notes that the Veteran is in receipt of the Combat Infantryman Badge, had service in Vietnam, had a military occupational specialty of a light weapons infantryman, and received the Purple Heart. Thus, the evidence reflects that he served in combat. In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C. § 1154 (b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The phrase “engaged in combat with the enemy” requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). When the combat presumption has been triggered, as in this case, a medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between current disability and his military service. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The provisions of 38 U.S.C. § 1154 (b) do not establish a presumption of service connection, but ease the combat Veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). However, the combat presumption does not extend to any statement that the Veteran had hearing loss upon separation or that his hearing loss is due to service; it merely allows for the presumption that an incident occurred in combat. In this case, the Board acknowledges, as did the VA clinician, that the Veteran was exposed to loud noise in service. The Veteran is competent to testify as to difficulty with hearing acuity. However, he did not report any hearing difficulty in service or for numerous years after separation. If he had noticed a significant change in hearing acuity (i.e. an increase in his hearing level from entrance), it seems reasonable that he would have reported such, rather than state that his condition had not changed since his earlier physical and that his condition was “excellent” (see October 1970 Report of Medical Examination). The Board can reasonably conclude that the Veteran had become accustomed to his left ear diminished hearing prior to service that it had become “normal” to him, and that he did not notice any increase in service; thus, he did not report such and instead noted excellent health. The Board also has considered the Veteran’s suggestion that the incident for which he received a Purple Heart could have damaged his left ear, and that the audiology results showed that his left ear was more impaired than his right ear. However, the Veteran, who is not competent to render an etiology opinion, has also failed to recognize that it was his left ear which had abnormal hearing (under Hensley) upon entrance into service. Thus, his left ear hearing acuity was worse than his right ear upon entrance into service, and his left ear simply continues to be worse than the right ear. The April 2014 VA examination report reflects that the Veteran reported the onset of tinnitus in 1969 while in Vietnam. The clinician opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with the Veteran’s hearing loss, as tinnitus is known to be a symptom associated with hearing loss; however, the clinician stated that he could not opine that the Veteran’s hearing is as likely as not related to service. Thus, if the clinician found that the Veteran was credible as to in-service tinnitus, it would seem reasonable that he would have found that the hearing loss was as likely as not also incurred in service. However, and importantly, the Board finds, and discussed in further detail below, that contentions as to an onset of tinnitus in service are less than credible given the record as a whole. The Board has considered all of the Veteran’s contentions, as well as the pertinent case law. Assuming that the Veteran had a hearing loss disability upon entrance into service, there is not competent credible evidence of an increase in severity of his preexisting disability in service. Assuming that the Veteran did not have a disability for VA purposes upon entrance into service, there is not competent credible evidence that his noise exposure in service, or any other incident of service, caused his current hearing loss disability of the left ear. 3. Entitlement to service connection for tinnitus As noted above, the Veteran reported upon separation from service that he was in excellent health. The earliest clinical evidence of tinnitus is not until 2013, which is more than forty years after separation from service. In addition, a May 2016 VA record notes that the Veteran reported “some ringing in ears for past few weeks” and that the “ringing of the ears is getting worse.” Although the Veteran is competent to state that he has ringing of the ears, there is no such complaint in his STRs, he reported excellent health upon separation, and there is no evidence of tinnitus for several decades after separation. The Board finds that contentions as to an onset of tinnitus in service are less than credible given the record as a whole. It is not merely the lack of complaints in service, but also the Veteran’s assertion that his health was excellent upon separation, as well as the lack of complaints in the decades after separation from service, that the earliest clinical evidence of tinnitus is not for more than four decades after separation from service, and that the Veteran reported that he did not notice hearing difficulties until several years after separation from service. The Board also notes that when seeking treatment as a new patient with VA in January 2006, he listed his medical history, to include colon polyps, left inguinal pain, acid reflux, knee pain, allergies, hyperlipidemia, BPH, plantar fasciitis, and gout; the report is negative or any complaint of tinnitus. As the Veteran was being seen to establish patient care, it seems reasonable that if he had had tinnitus since service, he would have mentioned such and that it would have been noted in the record. The Board also notes that November and December 2008 VA clinical records reflect that the Veteran’s ears were blocked by cerumen and that he was prescribed an ear wash and cerumen drops; the records are negative for complaints of tinnitus. It seems reasonable that if the Veteran had tinnitus since service, he would have noted it when requesting to have his ears washed due to ear wax build-up. The Board finds that the evidence as a whole is against a finding of continuity of tinnitus in service. 4. Entitlement to service connection for a right knee disability is denied. The Veteran contends that he injured his right knee in service when a mine detonated near his vehicle. He contends that his right knee sustained a gash as well as a “concentrated blow” to the outside (see September 2015 statement). As noted above, the Veteran served in combat and the Board will presume that he is credible as to sustaining a gash and impact to the right knee. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran has a right knee disability which began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran contends that shortly after discharge, “very often” he could not work or exercise without right knee pain. He also stated that the condition surfaced, and then calmed down for periods of time only to resurface again. The Board notes however, that there are no treatment records for more than three decades after separation from service, and the Veteran worked in a labor-intensive field of employment; he worked as a forester doing survey work for three to four years which required significant hiking in the field and in mountains. The Board also finds any statement as to pain upon discharge to be less than credible. As noted above, the Veteran’s 1970 Report of Medical examination reflects that he reported that he was in excellent health. While the Veteran may have had a blow and a gash to the right lower extremity in February 1970, the Board can reasonably find that no disability existed at separation, as he described his health as excellent several months later and had a normal examination upon separation. The earliest clinical evidence of a knee complaint is in 2002, more than thirty years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A December 2002 Western Montana Clinic record reflects that the Veteran reported right medial knee pain with no trauma. The Board finds that if the Veteran had chronic complaints of the knee since service, he would have reported such in 2002 when having his knee evaluated. A November 2003 private record reflect that the Veteran was seen for a followup for right knee osteoarthritis. He reported that he is active in playing tennis and riding a bike and does not have pain unless he exercises. 2006 VA records reflect complaints of right knee pain. A May 2007 VA podiatry record reflects that the Veteran has a history of cavus feet with right foot varus that causes him difficulty in walking and weight bearing. The Board finds it notable that none of the records reflect chronic symptoms since service or even chronic symptoms in service. A 2014 VA examination report reflects the opinion of the examiner that the Veteran’s current right knee disability has “no nexus no relation” to the in-service lower extremity injury reported by the Veteran. The clinician noted that the Veteran has a congenital short right leg with micro-traumatic impact strain to the right knee. The clinician also noted that current findings were not consistent with either a recurrent or chronic condition from an in-service injury described by the Veteran. The clinician found that the Veteran has “a congenital short right leg by two (2) cm when compared to left; and a secondary acquired sacroiliac dysfunction caused by the congenital short leg. Consequently the short leg postural imbalance can cause a varus/valgus accentuated pelvic shift vs. micro-traumatic impact strain in the lower extremity joints, as is the case here. Congenital defects are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303 (c). Moreover, there is no competent credible evidence of a disability superimposed on his congenital defect which warrants service-connection. While the Veteran is competent to report having experienced symptoms of knee pain, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an injury in service. The issue is medically complex, as it requires knowledge of the interaction between various joints and bones of the body, as well as the effects of injuries and time. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the 2014 VA examiner’s opinion that the Veteran’s right knee disability is not at least as likely as not related to an in-service injury, event, or disease, including an in-service injury is probative. The VA examiner’s opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also finds that any clinical opinion based on chronic symptoms since service lacks probative value because it would be based on a less than credible history given that the Veteran reported that he was in excellent health upon separation. Conclusion The Veteran is competent to report hearing acuity difficulty, tinnitus, and knee pain, even though the complaints/symptoms were not recorded during service. As a combat Veteran, he is also presumed credible as to an allegation of exposure to loud noise, a gash to the leg, and hitting the leg on a vehicle. However, the STRs lack the documentation of the combination of manifestations sufficient to identify hearing loss disability, tinnitus, and chronic knee pain, and chronicity in service is not adequately supported by the STRs. Moreover, there is not credible continuity of symptoms after service (or increased left ear hearing loss in service) to support the claims, and the Veteran does not have a right ear hearing loss disability for VA purposes. To the extent the Veteran is asserting continuity of symptomatology from service, his statements are inconsistent with the contemporaneous evidence of record in the years of service, to include the normal findings upon separation and the Veteran’s assertion as to having excellent health upon separation. In making such a credibility finding, the Board is not finding that the Veteran has any intent to deceive. Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago. (As noted above, the Veteran did not make his statements as to continuity until more than forty years after separation from service.) The Board appreciates the Veteran’s honorable service, to include that he served in combat in Vietnam. This decision is in no way meant to diminish his service, to include his receipt of the Combat Infantryman’s Badge and the Purple Heart for which the country is grateful; however, the preponderance of the evidence is against the claims. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard