Citation Nr: 18146218 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 15-15 491 DATE: October 31, 2018 ORDER Entitlement to service connection for a left ear hearing loss disability is denied. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to a rating of 10 percent for Osgood-Schlatter disease is granted. FINDINGS OF FACT 1. Left ear hearing loss disability was noted at entry. 2. Left ear hearing loss disability did not increase in severity during service. 3. Right ear hearing loss disability did not manifest in service, within one year of separation, and is not otherwise related to service. 4. Osgood-Schlatter disease manifested with pain on motion. Remaining functional flexion is better than 45 degrees. CONCLUSIONS OF LAW 1. Preexisting left ear hearing loss was not aggravated by service. 38 U.S.C. §§ 1131, 1132, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2017). 2. A right ear hearing loss disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for an evaluation of 10 percent for right knee Osgood-Schlatter disease have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5099-5010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to December 1984. The Veteran appeared at a Board hearing in May 2018; a transcript is of record. With respect to the Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. In characterizing the issue on appeal, the Board has considered the claim as one based on a diagnosis not considered in a prior decision and therefore the claim is treated as a new claim without the need for new and material evidence. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits). In a rating decision dated in June 1990, the Veteran’s claim for service connection for generic left ear hearing loss was denied. There was no evidence, at the time of the prior rating decision, the Veteran had left ear sensorineural hearing loss. As noted below, the Veteran has now been found to have left ear sensorineural hearing loss. The Board notes that the rating decision in February 2014 treated the case as one for new and material evidence. The rating decision did not specifically state whether the claim was reopened or not, but did address the issue of service connection on the merits. Therefore, the Board can proceed with adjudication. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. & 2. Bilateral Hearing Loss The Veteran reported during service, he was exposed to noise from jet and helicopter engines. The Veteran claims his left ear sensorineural hearing loss was aggravated by service and his right ear hearing loss was caused by service. The Veteran additionally has stated his hearing examinations in service were not adequate in showing right ear hearing loss or aggravation of a pre-existing left ear hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. At enlistment in November 1980, the Veteran was noted left ear hearing loss and an audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 20 LEFT 0 40 60 60 45 The examination’s summary of defects and diagnoses reported hearing loss left. The Veteran, on a report of medical history at entrance, denied any hearing or ear trouble. The Veteran had audiological tests in October 1982 and August 1983 and on a December 1983 reference audiogram after exposure in noise. These show the Veteran had a slight abnormality at the 4000 Htz in the right ear at entrance and some variance (largely improved) on these re-examinations in service. Service records generally do not report any issues with right ear hearing loss or complaints of left ear worsening. A separation examination in October 1984 reported that the Veteran’s ears were normal. An audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 15 30 LEFT 10 45 65 60 55 The October 1984 report of medical history does note yes for hearing loss, but only for the left ear. The report of medical history at separation given in October 1984 did note left ear hearing loss worsened since entrance. The audiological testing on the 1984 separation examination is reported above. A January 2014 VA treatment note reports that the Veteran presented with bilateral sensorineural hearing loss and was fitted with hearing aids. The Veteran had a VA examination in November 2013. VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 60 55 LEFT 20 75 70 65 60 Speech discrimination was 96 percent (Maryland CNC word list) in the right ear and 60 percent in the left. The examiner found sensorineural hearing loss bilaterally in the frequency range of 500-4000 Hz and 6000 Hz and higher. The examiner noted, in his rationale, that there was a lack of shift in hearing thresholds bilaterally when comparing Veteran’s entrance examination dated November 1980 and his release from active service duty dated in October 1984. The Veteran presented with hearing loss in his left ear at enlistment and was tested at separation and hearing was stable at all frequencies in both ears. The examiner noted that the Veteran had pre-existing left hearing loss and that it was not aggravated in military service. The examiner stated hearing in the right ear was normal at enlistment and stable at separation showing no significant shift in hearing in the right ear during active service duty. At enlistment the Veteran presented with mild to moderately severe hearing loss in his left ear. At separation, hearing in the left ear was stable at all frequencies and showed no significant shifts in threshold values. Left ear The Veteran contends his hearing loss was aggravated by in-service noise exposure. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 C.F.R. § 3.304(b). The presumption of soundness is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service, and was not aggravated by such service. Id. The Veteran had left hearing loss disability at entrance. It was noted on the entrance examination. A VA examiner found that the pre-existing left ear hearing loss was not aggravated by service. The examiner cited the Veteran’s enlistment audiogram documenting hearing loss and separation audiogram, which also noted hearing loss. The examiner stated there was no increase in left ear hearing loss during service and it was not aggravated by service. The examiner clearly states that left ear hearing loss was stable. The opinion is well-supported and consistent with the record and is highly probative. Here, there was no increase in severity and the presumption of aggravation does not attach. While the Veteran is competent to assert his perceptions, his assertions are of minimal probative weight in determining whether this condition was aggravated in service in view of the examiner’s well-supported opinion to the contrary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds that the VA examiner’s conclusions on this point are more probative than the Veteran’s lay statements. In summary, the Board finds that the credible and probative evidence of record clearly and unmistakably shows that the Veteran’s left ear hearing loss preexisted service, underwent no increase in disability in service and clearly and unmistakably was not aggravated therein. For this reason, the Board finds that service connection for this disability is denied. 2. Right ear The Veteran contends that he has a right ear hearing loss disability due to service and, if he had proper hearing examinations, right ear hearing loss would have been shown to exist in service. Therefore, the Veteran’s claim is based on an in-service emergence of hearing loss. As noted above, the Veteran has hearing loss disability. The question is whether a hearing loss disability of the right ear is due to service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board has considered the Veteran’s lay statements that he had right ear hearing loss in service. The Veteran is competent to report hearing loss, as it is lay observable. While the Veteran is competent to report having experienced certain symptoms, his statements are not credible, as they contradict both the report of medical history at separation, the separation examination, and VA treatment records, which did not report any right ear hearing loss until years after service. Therefore, the Board assigns low probative value to the Veteran’s statements regarding hearing loss having started in service. The Board finds that the medical evidence of record, and the lack of competent evidence for the Veteran’s lay statements, is against the claim. The examiner’s opinion is probative, because it 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). Consequently, the Board gives more probative weight to the VA opinion. The Board concludes that, given the medical evidence, including the service treatment and VA records and the VA audiologist’s opinion, there is no competent evidence of right ear hearing loss at separation or until multiple decades after service. His assertion that he either was not tested or that testing was not accurate is unsupported and accorded no probative value. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine is therefore not for application, and 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). Both ears The Board notes that sensorineural hearing loss is a chronic disease. 38 U.S.C. §§ 1101, 1131, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Here, sensorineural hearing loss did not manifest in service or within the presumptive period. There was no diagnosis of left ear sensorineural hearing loss in service. Therefore, the Veteran did not have the characteristic manifestations sufficient to identify the disease entity in either ear. Additionally, there is no acceptable evidence of sensorineural hearing loss until multiple years after service and no credible evidence linking the remote pathology to service. Rather, right ear hearing was normal on service examinations, including at separation, and there were no related complaints of right hearing loss for years following service. While left ear hearing loss was identified in service, there was no finding of sensorineural hearing loss for years following service. The Veteran submitted several statements regarding either not having a separation hearing examination or that the separation hearing examination was not adequate. The Board acknowledges the Veteran’s statements regarding the inadequate of the in-service testing at separation. However, the service records contain multiple audiometers, including at separation and enlistment and in October 1982, August 1983, and reference audiogram dated in December 1983. These were reviewed in 2013 by a medical professional who found there was no aggravation or no causal relationship between the claim disabilities and service. Although the Veteran’s statements have been considered, they do not establish entitlement to compensation, given the probative medical opinion based on evidence of record. Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 3. Osgood-Schlatter disease of the right knee The Veteran filed a claim for an increased rating in June 2013. The Veteran’s right knee is rated noncompensable (0 percent) under diagnostic code 5099-5010 for X-ray evidence of traumatic arthritis without painful or limited motion. On his Notice of Disagreement, the Veteran noted that he sought a 15 percent rating for several disabilities, including the right knee. During the Board hearing, the Veteran’s representative clarified that the Veteran sought a 10 percent rating for painful motion. The Veteran had VA treatment off and on for many years, including for knee pain. VA treatment records do not report range of motion testing or limitation of motion. The Veteran had a VA examination in November 2013. The examiner diagnosed Osgood-Schlatter disease with residual hypertrophic right tibial tuberosity change and degenerative joint disease. The Veteran reported a history of pain in the knee, Flexion to 140 degrees and extension to 0 degrees without evidence of painful motion. There was no evidence of additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive motion. There was a prominent deformity of the tibial tubercle which was tender, joint lines were nontender. The Veteran had pain on palpation for joint line or soft issues. There was no evidence of instability, subluxation, or incoordination. X-ray findings showed extensive chronic hypertrophic changes of the tibial tubercle and mild degenerative joint disease. The Veteran reported flare-ups when hiking and walking long distances, such as a half mile, which aggravates the knee. An addendum opinion also dated in November 2013 showed limitation during flare-ups or daily use, but the examiner could not give a degree of limitation because this could not be replicated at the time of examination. The Veteran had a VA contractor examination in August 2018. On testing, range of motion from 0 to 70 degrees for the right knee on flexion and 70 to 0 degrees on extension and the Veteran had pain on both extension and flexion. Pain with repeated use overtime and during flare-ups was noted. These did not cause additional decreased range of motion, as the examiner listed range of motion the testing as the same (flexion 0 to 70 degrees, extension 70 to 0 degrees). The Veteran had moderate pain located at the tibial tuberosity, medial and lateral joint line directly related to Osgood-Schlatter disease and pain on weightbearing and evidence of crepitus. Pain significantly limited functional ability with repeated use over time. The Veteran had decreased flexion and increased pain when walking or prolonged standing. The Veteran had less movement then normal, disturbance of locomotion, and interference with standing, described decreased flexion and increased pain with walking and prolonged standing. There was no other abnormalities or issues, no ankylosis, muscle strength, or joint instability. There was evidence of pain in non-weight bearing, same in passive range of motion as in active. Functional impact was that the Veteran has difficulty squatting, kneeling standing and walking, and difficulty negotiating stairs. The hyphenation of the Diagnostic Codes (DC) indicates that the exact diagnosed condition is not listed, and the rating is applied by analogy to a closely related condition that best approximates the disability picture. 38 C.F.R. §§ 4.20, 4.27. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part (here, the knee) and “99.” Id. Regarding the diagnostic codes applicable to the knee, the RO determined that while there was no limitation of motion under DCs 5260, 5621, 5010, or 5003. The Board notes that there are other DCs relating to knee disorders, such as DC 5256 (ankylosis of the knee), DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage, symptomatic), DC 5262 (impairment of the tibia and fibula due nonunion or malunion), and DC 5263 (for genu recurvatum). DCs 5256, 5257, 5258, 5259, 5262, and 5263 do not apply, as the VA examinations and VA treatment records do not show ankylosis; subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion; cartilage, semilunar, removal; tibia or fibula nonunion or malunion; or genu recurvatum, respectively. DC 5010 directs that arthritis due to trauma be rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a. Pursuant to DC 5260, when flexion is limited to 60 degrees a 0 percent rating is warranted. Flexion is limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. This diagnostic code provides when extension is limited 5 degrees, a noncompensable rating is warranted. When extension is limited to 10 degrees, a 10 percent rating is warranted. When extension is limited to 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. A knee disability warrants at least a minimum compensable rating for the right knee joint pursuant to provisions of 38 C.F.R. § 4.59. The evidence reveals that the Veteran has painful motion of the knee. Pain was already noted in earlier VA treatment records. A 10 percent rating is assigned for the right knee for the whole period on appeal. A minimum compensable rating is granted for the knee joint pursuant to provisions of 38 C.F.R. § 4.59. Therefore, his symptoms are consistent with a 10 percent disability rating. The 10 percent evaluation now contemplates periarticular pathology productive of painful motion. Also, it is consistent with limitation of flexion to 45 degrees. A higher evaluation may be assigned if limitation of flexion approximates 30 degrees. A separate evaluation may be assigned for compensable limitation of extension. The Veteran had no limitation of motion during the 2013 examination. The August 2018 examination showed limited motion in flexion to 70 degrees and normal extension. Here, the record establishes that he does not have compensable limitation of extension. Although there is limitation of flexion, the remaining functional flexion is far better than 45 degrees. The Veteran reported he had thought he may have slight instability of his knee during his Board hearing and a December 2017 VA treatment note reported that the Veteran felt he had knee instability. However, upon examination in August 2018 all joint stability testing was normal and the examiner did not report any instability of the knee. There is no mention elsewhere of instability when the Veteran sought treatment for the knee. Although the Veteran is competent to report knee instability or feeling unstable, the Board gives more probative weight to the August 2018 VA examination report, which included relevant testing. Given that the examination testing was normal, the Board finds that lateral instability has not been shown. The Board finds no evidence for an evaluation in excess of 10 percent for the right knee limitation of motion manifestations. The preponderance of the evidence, therefore, is against a disability rating in excess of 10 percent under relevant diagnostic codes. Here, there is pain on motion. However, extension is normal and flexion is better than 45 degrees. A higher rating is not warranted. Neither the Veteran nor the representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel