Citation Nr: 18141555 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 14-43 951 DATE: October 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss, claimed as due to service-connected tinnitus, is denied. Entitlement to service connection for a Baker’s cyst of the left knee is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression and generalized anxiety disorder (GAD) is remanded. FINDINGS OF FACT 1. The Veteran does not have a current disability of bilateral hearing loss, per VA regulations. 2. It is less likely than not that the Veteran’s left knee Baker’s cyst had its onset in service, or is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss, claimed as due to service-connected tinnitus, have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a Baker’s cyst of the left knee have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1992 to October 1994, and from December 1998 to October 2000. Service Connection Entitlement to service connection for bilateral hearing loss and for a Baker’s cyst of the left knee The Veteran seeks service connection for bilateral hearing loss and for a left knee Baker’s cyst. He asserts that his hearing loss has been present continuously since service and is etiologically connected to his tinnitus. The Veteran has not provided specific argument as to why he believes that service connection for a left knee Baker’s cyst is warranted. 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. Service connection for bilateral hearing loss is denied because there is no current disability, according to VA regulations. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Board concedes in-service acoustic trauma due to the Veteran’s occupation as an infantryman; however, service connection for bilateral hearing loss is not warranted because the Veteran does not have bilateral hearing loss as defined by 38 C.F.R. § 3.385. Specifically, medical evidence, including the Veteran’s most recent VA examination in December 2016, demonstrates that the Veteran does not have bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385; he did not have auditory thresholds at frequencies of 500, 1000, 2000, 3000, or 4000 Hz of 40 dB or greater; or auditory thresholds for at least three of the above frequencies of 26 dB or greater; or speech recognition scores less than 94 percent. Notably, his auditory thresholds did not exceed 15 dB at any relevant frequency in either ear. Moreover, his speech recognition scores were 100 percent in the right ear and 98 percent in the left ear. Similarly, at his January 2014 VA examination, the Veteran did not have auditory thresholds approaching 26 dB or greater at any of the relevant frequencies, and his speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. While the December 2016 audiogram shows that the Veteran has some degree of hearing loss (a puretone threshold above 20 decibels) at 6000 Hz in the left ear; and, at 8000 Hz in both ears, these frequencies are not considered in the criteria for determining a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Therefore, service connection for bilateral hearing loss is not for application; the evidence fails to demonstrate that a current disability exists, as the Veteran does not have a right or left ear hearing loss disability for VA purposes. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the Veteran does not have current hearing loss based on the evidence of record, the Veteran’s claim must be denied. As for a left knee Baker’s cyst, service connection must be denied because the evidence of record does not show that the Veteran’s current symptoms began in service, or that they are related to service. First, the Veteran’s service treatment records do not show treatment for or complaints of a left knee cyst in service. A separation examination report dated September 2000 does not mention symptoms of a knee disorder, to include a Baker’s cyst. Indeed, the first indication that the Veteran has a Baker’s cyst is a treatment record dated September 2013. A November 2013 VA emergency room report notes the Veteran’s reports of posterior left knee pain which began one month earlier. Thus, continuity of symptomatology is not shown based on the medical evidence of record. Further, the Veteran does not contend that his left knee symptoms have been present since service. In fact, he asserts that his pain began in September 2013. Also, he does not point to an injury in service that could have caused this disability. Thus, continuity is not shown based on the Veteran’s statements, either. A current disability is conceded. Next, service connection can be awarded if the evidence shows that a medical nexus between the current disability and an injury, disease or other event in service is at least as likely as not. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Here, however, the medical evidence indicates that the Veteran’s disorder was less likely caused by an illness, event, or injury during active service. Specifically, there are no treatment records establishing that the Veteran’s cyst is related to active duty, nor has any medical professional asserted that such a relationship exists. Indeed, a September 2013 emergency department chart note mentions that the injury is of an unknown etiology (medical cause). Further, the Veteran stated to his treating physician in November 2013 that he worked as an umpire for a high school, and was unsure whether he had injured his knee during a game. Finally, the Veteran endorsed left leg calf pain in a January 2014 emergency note, which was determined to be more likely caused by non-service-connected varicose veins. At least two intervening causes of the Veteran’s symptoms are indicated by the above evidence. Thus, it is unlikely that remanding for a VA examination will uncover a service-connected etiology of the Veteran’s left knee symptoms. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, service connection is not warranted for the Veteran’s left leg Baker’s cyst. Significantly, the Veteran has not provided any evidence or argument as to why he believes that service connection is warranted for his left knee symptoms, and the medical evidence of record weighs against the claim. Without adequate basis to suggest that the Veteran’s left knee symptoms are related to military service, the Board finds that the weight of the competent evidence does not attribute the Veteran’s symptoms to military service. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b) (2012). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a left leg Baker’s cyst is denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression and generalized anxiety disorder (GAD) is remanded. The Veteran’s claim for an acquired psychiatric disability requires further development before an appeal can be decided. Specifically, the Veteran should be afforded a VA examination in which evidence of a psychiatric disorder presenting thirteen months after separation is considered. During service, the Veteran showed symptoms of an alcohol related disorder. An intake record dated December 1999, during the Veteran’s second period of service, notes alcohol dependence. Indeed, according to a September 2000 separation examination report, the Veteran was advised to reduce his alcohol intake. The Veteran was separated in October 2000 due to failure to complete alcohol and drug rehabilitation. Just over one year later, in a November 2001 emergency services note documented an incident in which the Veteran, intoxicated, had threatened suicide and self-mutilation. The Board notes that the Veteran had no symptoms of a psychiatric disorder on entry, and showed symptoms of a psychiatric disorder in service. However, the record is incomplete as to what specific psychiatric disorders currently afflict the Veteran, and whether the Veteran’s current psychiatric difficulties are etiologically related to alcohol use (or other conditions of service). In other words, it is not clear whether the Veteran’s acquired psychiatric disorder is secondary to alcohol abuse; or, whether the Veteran’s alcohol abuse in service was a symptom or manifestation of an underlying psychiatric disorder. A VA examination is needed to identify the various disorders from which the Veteran currently suffers, and which, if any, are etiologically related to service. This will ensure the most favorable rating possible for the Veteran’s clinical symptoms. The matter is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Atlanta, GA since December 2017, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has records of private treatment, he should be afforded an opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder or disorders. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should identify all current psychiatric disorders found on examination. For each diagnosed psychiatric disorder, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorder is etiologically related to the Veteran’s periods of service, to include whether it began during service and/or whether the Veteran’s in-service alcohol abuse was a manifestation of an underlying psychiatric disorder. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). All opinions must be accompanied by an explanation. If the examiner opines that the above question cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel