Citation Nr: 18144294 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-34 278A DATE: October 24, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a deviated septum is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that bilateral hearing loss was caused by or incurred in service. 2. The preponderance of the evidence is against a finding that the Veteran’s deviated septum was caused by or incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for a deviated septum have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1968 to August 1972, from September 1972 to September 1976, and from November 1983 to September 1988. This case comes on appeal of a March 2012 rating decision. The case was previously before the Board in October 2017. At that time, the Board remanded the claim to afford the Veteran VA examinations related to the issues decided below. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases, including organic diseases of the nervous system, that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Sensorineural hearing loss may be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 1. Entitlement to service connection for bilateral hearing loss The Veteran filed a claim of entitlement to service connection for bilateral hearing loss in June 2011. An October 2011 VA examination revealed bilateral hearing loss for VA purposes and a current diagnosis is not in dispute. In addition, the Veteran served in law enforcement during military service, which is acknowledged as having a moderate probability for noise exposure. VA has previously conceded that the Veteran experienced noise exposure in service. At issue is whether hearing loss was caused by or incurred in service, to include noise exposure. In June 2018, the Veteran underwent a VA examination for hearing loss. The examiner opined that it was less likely than not that hearing loss was caused by or incurred in service. By way of rationale, the examiner first observed that the Veteran’s entrance and separation examinations were within normal limits. The examiner also observed and explained that periodic physical evaluations and hearing conservation examinations revealed threshold shifts, but these shifts appeared to be transient, as the same frequencies did not show permanent shifts on subsequent examinations. That is, the Veteran’s hearing fluctuated at times, but there was no evidence of a permanent worsening. The examiner then explained that these normal test results, medically speaking, demonstrates that there was no permanent auditory damage during service. The examiner added that there were no complaints of hearing loss in the Veteran’s medical record until it was diagnosed in the October 2011 VA examination. The examiner conceded that the Veteran had in-service noise exposure, and acknowledged that the relationship between noise exposure, auditory damage, and hearing loss was well-documented; however, in this case, there was no evidence of a nexus between the Veteran’s hearing loss and in-service noise exposure for the reasons discussed. There is no other evidence of record to suggest that the Veteran’s bilateral hearing loss was caused by or incurred in service. As noted by the June 2018 examiner, the Veteran’s hearing acuity was tested multiple times over the course of a military career that spanned twenty years, with a roughly seven-year interruption. At no point did those evaluations show evidence of permanent threshold shifts for any frequency in either ear, which the examiner stated would have been an indicator that the Veteran suffered in-service auditory damage. Based on the medical evidence of record, it appears that the first documentation of hearing loss came in the October 2011 examination. See Alexandria VA Medical Center Record, October 25, 2011 (noting that the Veteran had recently had hearing checked which revealed mild hearing loss). The June 2018 examination report provided adequate medical rationale explaining why, from a medical perspective, the Veteran did not likely incur in-service auditory damage to his ears. The Board finds the reasoned medical opinion of the June 2018 examiner to be more probative than the Veteran’s lay assertions to the contrary. The Board observes that on his April 1988 Report of Medical History, the Veteran specifically denied experiencing ear problems or hearing loss. Based on the foregoing, the evidence is against a finding that bilateral hearing loss was caused by or incurred in service, or that the Veteran has experienced a continuity of symptoms since service. Additionally, there is no evidence that bilateral hearing loss manifested to a degree of 10 percent or more within one year of separation. As the preponderance of the evidence is against these findings, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a deviated septum The Veteran filed a claim of entitlement to service connection for a deviated septum in June 2011. A diagnosis of deviated septum was confirmed in an October 2011 examination. At issue is whether the deviated septum was caused by or incurred in service. The AOJ denied service connection for a deviated septum in a March 2012 rating decision, noting that there was no objective evidence available to show that there was a traumatic event in service that caused a deviated septum, and there was no nexus between the diagnosed disability and service. The Veteran has contended that his current deviated septum was caused by an in-service fight in 1971 in which his nose was broken. The Board notes that the Veteran is competent to describe events which he personally experienced. Based on this alleged in-service event and the current diagnosis, in October 2017, the Board remanded the claim to afford the Veteran a VA examination and medical opinion devoted specifically to the issue of the deviated septum. In June 2018 the Veteran underwent a VA examination. The examiner acknowledged the current diagnosis of a deviated septum, reporting that the diagnosis first appeared in the record after a nasal endoscopy in 2011, although per the Veteran’s own history, the date of onset was 1971. The examiner opined that it was less likely than not that the deviated septum was caused by or incurred in service, to include the altercation in 1971. The examiner noted that the diagnosis did not appear in the Veteran’s medical record prior to 2011 and that there was no supporting evidence in the record relating the deviated septum to the 1971 altercation. Service treatment records demonstrate that the Veteran was seen by at the United States Air Force hospital in Cam Ranh Bay Air Base in Vietnam in May 1971 after being involved in a fight. X-rays at that time were within normal limits. There was no reference to a deviated septum on the Veteran’s July 1972 separation examination, nor is there any mention of a deviated septum in the subsequent examinations for re-enlistment, periodic physicals, and retirement. There are multiple notations in the service treatment records where the Veteran was seen for nasal congestion, but these instances were accompanied by colds or flu-like symptoms, and there was no indication that the congestion was due to nasal trauma. As was mentioned, the Veteran, as a layperson, is competent to testify to events as he experienced them and to his recollection of diagnoses given. He is not competent, however, to make etiological determinations or to make diagnoses that require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, although the record supports the fact that the Veteran was involved in a fight in 1971, it does not support his claim that the fight resulted in a broken nose. Indeed, x-rays at the time did not show that this was the case. The fact that a deviated septum was not mentioned in service treatment records as the Veteran re-enlisted, separated from service, and ultimately enlisted again seven years later further discredits that narrative. Combined with the service treatment records and the lack of a diagnosis prior to 2011, the VA examiner’s opinion is probative. In the absence of any competent evidence supporting an in-service onset of a deviated septum, the preponderance of the evidence is against a finding that it was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMANDED Entitlement to a higher initial rating for degenerative joint disease of the left knee, rated as noncompensable from June 7, 2011 to June 27, 2012; at 10 percent from June 27, 2012 to December 9, 2013; and at 30 percent from December 9, 2013 is remanded. Entitlement to a higher initial rating for degenerative joint disease of the right knee, rated as noncompensable from June 7, 2011, at 10 percent from December 26, 2012, and at 30 percent from June 4, 2015 is remanded. REASONS FOR REMAND With regard to entitlement for increased initial ratings for the left and right knee disabilities, a new examination is necessary to accurately assess the current severity of the disability. The Veteran most recently underwent a VA examination over three years ago in June 2015. Since that time, the Veteran has specifically reported that his knees are progressively getting worse. Updated VA knee examinations should be scheduled on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left and right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examination must include testing results of joint pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. If such testing cannot be completed, an explanation should be provided as to why this is so. (C) The examiner must also estimate any functional loss in terms of additional degrees of limited motion of the lumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel