Citation Nr: 18142865 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-14 608 DATE: October 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. FINDINGS OF FACT 1. Disabling hearing loss did not become manifest during or soon after service, and was not caused by noise exposure in service. 2. Current tinnitus is not attributable to noise exposure in service. 3. Right knee strain in service resolved in service without residual pathology; current chronic right knee disability had onset more than a year after service and is not related to the strain or other events in service. 4. Left knee strain in service resolved in service without residual pathology; current chronic left knee disability had onset more than a year after service and is not related to the strain or other events in service. CONCLUSIONS OF LAW 1. Current hearing loss disability was not incurred or aggravated in service and is not presumed to be service connected. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. Current tinnitus was not incurred or aggravated in service. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Current right knee disability was not incurred or aggravated in service and is not presumed to be service connected. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. Current left knee disability was not incurred or aggravated in service and is not presumed to be service connected. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran contends that the claimed disabilities had onset during her service. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis and organic diseases of the nervous systems such as sensorineural hearing loss and tinnitus, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims (Court) has noted that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. 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, 1 Vet. App. at 54. 1. Hearing loss The Veteran reports noise exposure during service. She contends that the noise caused her hearing loss. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of a veteran’s separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. In addition, the Court cited a 1988 medical treatise that stated that the threshold for normal hearing was from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. On audiological evaluation of the Veteran in July 1971, for entrance into service, thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 The Veteran’s service records reflect that she had duties as an operator of computer peripheral equipment. On audiological evaluation in November 1978, for separation from service, thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 5 10 LEFT 15 5 5 10 5 Speech recognition was not tested in service. There is no indication that the Veteran’s hearing was tested during the year following her separation from service. For a period of many years following her service, there is no information about her perception of her hearing capacity or about any testing of her hearing. In February 2015 the Veteran submitted a claim for service connection for several disorders, including hearing loss. On VA audiological evaluation in June 2015, thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 25 30 LEFT 25 30 20 35 30 Speech recognition scores were 96 percent in the right ear and 96 percent in the left ear. The thresholds in the left ear met the 38 C.F.R. § 3.385 criteria for hearing loss disability. The examining audiologist diagnosed bilateral sensorineural hearing loss. The examiner found that the Veteran’s data processing duties in service had a moderate probability of noise exposure. He provided the opinion that it is less likely than not that current hearing loss is related to events in service. He explained that at separation from service in 1978 testing did not show the mild hearing loss that was shown in 2015. In statements submitted in 2015 and 2016, the Veteran wrote that during her service in the 1970s computers were huge and noisy, and the computer rooms she worked in were extremely noisy. She stated that the noise was so loud that people could not hear voices at normal volume, and had to leave the room to converse. She indicated that after service she worked in quiet environments, and did not have any further significant noise exposure. As there is no persuasive evidence of disabling hearing loss within a year after separation from service, presumption of service connection for hearing loss is not warranted. The Veteran has described her noise exposure in service. During service, her auditory thresholds increased, but remained well below the 20 decibels level that indicates some hearing loss. Many years later, in 2015, the thresholds were higher, and an examiner found mild sensorineural hearing loss. The examiner provided a reasonable explanation of his opinion against the likelihood of a connection between noise in service and current hearing loss. That opinion is persuasive. Considering that opinion, and the hearing levels at separation from service and in 2015, the greater persuasive weight of the evidence is against a nexus between the noise exposure in service and the current hearing loss. Service connection for the current hearing loss therefore is denied. 2. Tinnitus The Veteran contends that current tinnitus began during service and is attributable to noise exposure during service. She notes that she worked full time in computer rooms with extreme noise levels. The Veteran’s service medical records do not reflect any reports of tinnitus. Records of VA treatment of the Veteran in 2000 through 2014 do not reflect any reports of tinnitus. The Veteran filed her claim for service connection for tinnitus in February 2015. On VA examination in June 2015, she reported that she noticed tinnitus after separation from service, within a year after. The examiner provided the opinion that it is less likely than not that her current tinnitus was associated with her noise exposure in service. He noted that her service records were silent for complaints of tinnitus. He opined that her current hearing loss had onset after service, and that her tinnitus was most likely associated with that hearing loss. In statements submitted in 2015 and 2016, the Veteran wrote that during service she experienced tinnitus periodically, though not constantly. She indicated that within a year after separation from service she noticed constant tinnitus. She asserted that her tinnitus began in service with daily work in noisy computer rooms. During service the Veteran had noise exposure. Her auditory thresholds increased, but remained within normal range at separation from service. Her noise exposure did not produce disabling hearing loss by the end of her service. In post-service treatment she has not reported tinnitus. Recently she has reported that she experienced tinnitus periodically during service, then constantly beginning within a year after service. This is inconsistent with treatment records showing no relevant complaints. Considering the lack of contemporaneous evidence of tinnitus during or soon after service, and the 2015 examiner’s opinion and explanation, the greater persuasive weight of the evidence is against onset of the current tinnitus in service or a nexus between the noise in service and the current tinnitus. Therefore, service connection for tinnitus is denied. 3. Right knee disability The Veteran contends that current chronic problems with both knees began during service. Much of the same evidence is relevant to the claims for service connection for disabilities of the right and left knees. The Board will summarize that evidence in this section of the decision. On examination of the Veteran in July 1971, for entrance into service, the examiner marked normal for the condition of her lower extremities. In October 1977 the Veteran had outpatient treatment for pain and stiffness in both knees. She indicated that presently she was doing three times as much running and physical exercise as she was used to doing. The treating clinician found that both knees had good ranges of motion. There was evidence of slight pain in the right knee with motion. The clinician’s assessment was muscle strain of both knees. The clinician prescribed analgesics, heat, and light duty. On follow-up four days later, the Veteran’s knees were doing well, with no pain. The clinician’s impression was resolving strains. On examination in November 1978, for separation from service, the examiner marked normal for the condition of her lower extremities. In VA treatment in May 2002, the Veteran stated that since service she had not been able to run, because running made her knees hurt. A clinician noted that she had a normal gait and that her lower extremities had normal muscle strength. Assembled VA treatment records from 2000 to 2015 do not reflect any other complaints involving either knee. In February 2015, the Veteran submitted a claim for service connection for disorders including bilateral knee disorders. On VA examination in June 2015, she reported onset of bilateral knee pain during her final year in service. She stated that, in training for a promotion, she had greatly increased running and exercise. She indicated that in a final five-mile run her knees became sore, and she had to be helped across the finish line. She did not report any treatment for knee problems after service. She related present pain in both knees, worse in the right. She reported right knee pain daily, and left knee pain most days. She stated that right knee pain became worse with squatting, kneeling, stairs, and hills. She related that right knee pain made her unable to walk more than three blocks. She did not report any catching, locking, or instability in either knee. She stated that she had retired from work as a postal clerk around 2013, to care for her husband after he had a stroke. The examining physician reported having reviewed the Veteran’s electronic claims file. The Veteran walked with a symmetrical gait. She walked on her toes and heels, and sat in and rose from a chair without difficulty. On a half squat she had right knee pain. The examiner found no deformity or tenderness of the knees. Both knees had motion from 0 to 140 degrees. There was no effusion or instability. The McMurray sign was negative. X-rays showed early degenerative changes in the medial compartment of each knee. The examiner found that the Veteran had bilateral patellofemoral pain syndrome. The examiner expressed the opinion that it is less likely than not that injury or other events in service caused the Veteran’s current knee problems. In statements submitted in 2015 and 2016, the Veteran wrote that, during a service training program in 1977, problems with her knees, especially her right knee, were so bad that she almost did not complete the program. She related that, at the end of one run, she collapsed because her knees were so painful that she could no longer stand. She stated that during the remaining year of her service she did not have heavy physical demands, but she had increasing knee pain, particularly with climbing stairs. She related that after service the knee pain continued and worsened. In March 2016, the Veteran wrote that an online article in Women’s Health indicated that a knee cartilage injury can occur and exist without causing pain, and can go undetected until later, after it worsens. The Veteran wrote to the physician author, asking whether an injury from 38 years earlier could mimic degenerative disease. The Veteran noted that the author’s office responded to her by telephone and told her that the answer was yes. There is no credible finding of arthritis in the right knee within a year after separation from service. Thus, there is no basis to presume service connection for right knee arthritis. Right knee pain treated in service in 1977 was diagnosed as muscle strain. Several days later a clinician found that it was resolving. On separation from service a year later no right knee problem was found. The Veteran relates continuous right knee problems from service through the present. Other than one statement in 2002, however, records of treatment over the years do not contain mention of knee problems. The VA examiner reviewed the claims file and explained his negative nexus opinion based on information in the record. That opinion is persuasive. The telephone response from the article author indicated that a hypothetical medical history was possible. As that response was not based on review of the Veteran’s specific history, it has fairly little persuasive weight on the question of a relationship between her service injury history and her current right knee problems. Considering the relative weight of the medical opinions, the evidence that right knee strain in service resolved in service, and the lack of contemporaneous evidence that right knee problems in service continued through separation from service or recurred soon after service, the greater persuasive weight of the evidence is against service connection for current right knee disability. 4. Left knee disability The Veteran contends that current chronic problems with both knees began during service. Much of the evidence relevant to the left knee claim is summarized in the right knee section above. As there is no finding of arthritis in the left knee within a year after separation from service, there is no credible basis to presume service connection for left knee arthritis. Considering the relative weight of the assembled medical opinions, the evidence that left knee strain in service resolved in service, and the lack of contemporaneous evidence that left knee problems in service continued through separation from service or recurred soon after service, the greater persuasive weight of the evidence is against service connection for current left knee disability. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel