Citation Nr: 18143539 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-24 554 DATE: October 19, 2018 ORDER Entitlement to service connection for left knee osteoarthrosis is denied. Entitlement to service connection for right total knee replacement, claimed as right knee total knee replacement with osteoarthrosis, is denied. An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s left knee osteoarthrosis did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s right total knee replacement did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 3. The Veteran’s hearing loss is manifested by Level I hearing in the right ear and Level I hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee osteoarthrosis are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for right total knee replacement with osteoarthrosis are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to April 1967 and December 1967 to December 1969. This matter is on appeal from a July 2015 rating decision, which denied entitlement to service connection for right knee total knee replacement with osteoarthrosis and left knee osteoarthrosis, and granted entitlement to service connection for bilateral hearing loss with an evaluation of 0 percent, effective January 27, 2015. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for left knee osteoarthrosis is denied 2. Entitlement to service connection for right total knee replacement is denied The Veteran contends that he has left knee osteoarthritis and right total knee replacement that are related to an in-service injury, event, or disease. The question for the Board is whether the Veteran has current disabilities that began during service or is at least as likely as not related to an in-service injury, event, or disease. Additionally, to assess the Veteran’s left knee osteoarthritis, the Board must determine whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has left knee osteoarthritis and right total knee replacement, the preponderance of the evidence is against finding that these conditions began during active service, or are 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). In addition, the Board concludes that, while the Veteran has left knee osteoarthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. A review of the Veteran’s service treatment records does not reflect any treatment for knee disabilities in service. A May 1964 report of medical history documents the Veteran’s report that he had a cyst removed from his left knee at age 16. A December 1969 report of medical history documents the Veteran’s “yes” response to whether he has or had ever had “swollen or painful joints” or “arthritis or rheumatism.” However, the physician noted in the explanation section that the Veteran’s joints were without sequelae. A December 1969 report of medical examination reported that the Veteran had a scar on the lower left extremity due to “vein stripping.” The examiner reported no other physical abnormalities. A December 2002 VA internal medicine note documented the Veteran’s report that a right knee ACL repair had been performed in the past. An April 2003 internal medicine note reported that the Veteran injured his left knee while on a ski trip and had been having persistent problems since then. The Veteran reported that he was concerned about a tear since his left knee had been unstable. He was diagnosed with a left knee injury with persistent instability and tenderness. A May 2003 radiology report indicated that the Veteran had fallen several weeks ago and hurt his left knee. The Veteran reported having mild pain but sometimes felt that his left knee was giving out. The imaging failed to demonstrate evidence of a fracture, dislocation, or major degenerative process and showed minimal early degenerative change at the right medial compartment and at the patellofemoral articulations. A May 2003 orthopedic surgery outpatient note reported that the Veteran had fallen while skiing at the end of March 2003 and thought he had sprained his left knee. The Veteran was referred to the clinic due to discomfort that is exhibited mostly while laying down at night. The Veteran reported that he was able to walk but on occasion had discomfort and sometimes felt like the left knee was giving away. The diagnosis was “equivocal finding of the ACL, a possible partial tear.” An April 2007 orthopedic surgery consult reported that the Veteran had complained of six months of knee pain and that he was status post left knee arthroscopy in 2005 for a meniscectomy. Radiographic imaging failed to demonstrate evidence of a fracture, dislocation or major degenerative process, but showed minimal early degenerative change at the right medial compartment and at the patellofemoral articulations. The Veteran was diagnosed with left knee arthralgia. In July 2015, the Veteran submitted a Notice of Disagreement in which he reported that, during his military service, he was a paratrooper and air cavalry officer, both of which required him leap from moving aircraft with a “massive amount of equipment strapped to my person.” The Veteran expressed that each of those landings created “massive trauma to my knees which is the root cause of the arthritic conditions.” According to the Veteran, as air cavalry officer, he would jump out of helicopters at a distance of three to eight feet as many as seven to eight times each day. A January 2014 primary care outpatient note reported that “7 weeks ago both knees were scoped,” as he underwent bilateral knee arthroscopic surgery. A January 2015 primary care note reported that the Veteran had a right knee replacement in October, which was likely October 2014. A January 2016 primary care note reported that the Veteran’s right knee had improved after surgery, but his left knee had been bothering him. The Veteran reported that he follows a “local ortho [who] gives him shots every 3 months.” In December 2015, the Veteran was afforded a VA examination for his claimed conditions of left knee and right knee osteoarthritis. The Veteran reported that the onset of his symptoms of bilateral knee pain was around 1985. The examiner reported that diagnostic testing of his right knee showed a normal metallic prosthesis and diagnostic testing of his left knee showed mild degenerative joint disease. The examiner opined that the Veteran’s bilateral osteoarthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that there were no medical records showing a bilateral knee condition or injury during active service. Moreover, the examiner stated “[b]ilateral knee degenerative joint disease is a normal condition of the aging process independent from the claimant’s military career. As previously described, the Veteran’s service treatment records show no evidence of treatment for any knee conditions. The earliest evidence of a right knee condition was in December 2002, when the Veteran reported a right knee ACL repair. The earliest evidence of a left knee condition was the Veteran’s reported injury while skiing in March 2003, more than three decades after the Veteran’s discharge from service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no medical evidence indicating a link between the Veteran’s knee conditions and service. Thus, the Board finds that neither the Veteran’s left knee osteoarthritis nor his right total knee replacement had its onset in active service or for many years thereafter. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms of knee conditions to many years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for left knee osteoarthritis and right total knee replacement. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the claims for the Veteran’s left knee osteoarthritis and right total knee replacement must be denied. 3. Entitlement to an initial compensable rating for bilateral hearing loss By rating action of July 7, 2015, the Regional Office granted service connection for bilateral hearing loss and assigned an initial noncompensable evaluation, under Diagnostic Code 6100 for hearing loss, effective January 27, 2015. The Veteran disagrees with the initial rating assigned. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. In May 2015, the Veteran was afforded a VA audio examination. Results from the audiogram reflect that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 40 50 LEFT 30 40 70 75 Puretone threshold averages were 37.5 decibels for the right ear and 53.75 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear, using Maryland CNC tests. Based on those results, with the utilization of Table VI, the Veteran has Level I hearing impairment in both the right ear and the left ear. Under Table VII, a designation of Level I hearing in the right ear and Level I hearing in the left ear yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. An October 2014 VA audiology progress note reported puretone results from an audiometric examination. The Veteran’s right ear hearing was within normal limits at 250-750 Hz, with mild to moderately severe sensorineural hearing loss from 1000-8000 Hz. The Veteran’s left ear hearing was within normal limits at 250-750 Hz, with mild to severe sensorineural hearing loss from 1000-8000 Hz. The examiner also reported “30 to 35 dB asymmetry noted at 3000-4000 Hz with left ear worse.” As described above, the audiological findings from the May 2015 audiogram, when analyzed under Table VII, equate to a noncompensable disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. At no time during the appeal period has the Veteran’s hearing loss disability been shown to rise to the level of symptomatology required to support a higher rating. The evaluation for hearing loss is based on objective testing. Thus, the objective VA examination report does not support an assignment of a disability rating in excess of what the Regional Office has already awarded — a noncompensable rating for the entirety of the appeal period. As such, a noncompensable disability rating is warranted. In July 2015, the Veteran submitted a notice of disagreement in which he expressed the following: “Given that my hearing has suffered due to noise exposure I believe it should have shown clearly a loss of speech discrimination and decibel loss.” The Board has considered the Veteran’s contentions regarding his claim for a higher rating. Although the Board does not doubt the sincerity of the Veteran’s belief regarding the severity of his hearing loss, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board in no way discounts the difficulties the Veteran experiences as a result of his bilateral hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion and must make a finding on the rating schedule based on the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. (Continued on the next page)   Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel