Citation Nr: 18146259 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 14-38 768 DATE: October 31, 2018 ORDER Entitlement to service connection for residuals of a right-hand contusion is denied. Entitlement to service connection for residuals of a varicocelectomy is denied. Entitlement to service connection for chronic lumbar myofascial strain is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of residuals of a right-hand contusion or residuals of a varicocelectomy. 2. The preponderance of the evidence is against finding that the Veteran has chronic lumbar myofascial strain due to a disease or injury in service. 3. The preponderance of the evidence is against finding that the Veteran has a right knee disorder due to a disease or injury in service, to include noted knee problems during service. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a right-hand contusion have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for residuals of a varicocelectomy have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for chronic lumbar myofascial strain have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1991 to May 1995 and from August 2003 to May 2005. He also served an additional time period in the U.S. Army Reserve. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA). The Veteran was scheduled for a hearing in front of the Board in February 2015, but failed to appear. As he has not provided good cause for his failure to appear or requested another hearing, the VA’s duty to provide him with a hearing has been met. 38 C.F.R. § 20.700. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). 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 veteran. 38 U.S.C. § 5107(b). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or ACDUTRA, or from injury (but not disease) incurred or aggravated while performing INACDUTRA. Id.; see also 38 U.S.C. §§ 106, 1110, 1131; 38 C.F.R. § 3.303(a). ACDUTRA includes full time duty performed by members of the Armed Forces Reserves or the National Guard of any state. 38 C.F.R. § 3.6(c). To establish status as a “Veteran” based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Further, the burden to establish “Veteran” status for a claim based on a period of ACDUTRA is on the appellant. Paulson; Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010). 1. Entitlement to service connection for residuals of a right-hand contusion 2. Entitlement to service connection for residuals of a varicocelectomy The Veteran contends that he suffers from residuals of a right-hand contusion and a varicocelectomy, both of which stem from incidents during service. 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. The Board concludes that the Veteran does not have a current diagnosis of residuals of a right-hand contusion or a varicocelectomy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 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). The August 2012 VA examiner evaluated the Veteran and determined that, while he may experience subjective symptoms of these disorders, he did not have an attributable diagnosis. Specifically, the Veteran’s right hand was injured in 1992 when he injured it lifting weights. However, the examiner observed no pain or limited function. With regards to the varicocelectomy, he underwent a left varicocelectomy in 2012. Since then, he has had occasional aching pain and sensitivity. However, the Veteran’s symptoms alone are insufficient to constitute a disability for VA purposes. Further, there are no treatment records demonstrating either treatment for or a diagnosis regarding a right hand or groin problem. The Board acknowledges that the Veteran has medical training as a corpsman. Therefore, he could be competent to address some healthcare matters. Nevertheless, the Veteran has not identified a specific disability affecting his right hand or his groin. Rather, he has described his symptoms, which the VA examiner has determined do not amount to a current disability for VA purposes. Moreover, while the Veteran may be competent to report having pain or soreness in a certain region, the evidentiary record does not reflect any resulting disability or functional impairment. See Saunders v. Wilkie, No. 886 F.3d. 1356 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Consequently, the Board finds that service connection for residuals of a right-hand contusion and residuals of a varicocelectomy is not warranted. 3. Entitlement to service connection for chronic lumbar myofascial strain The Veteran contends that his chronic lumbar myofascial strain is related to an in-service back injury. 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. The Board concludes that, while the Veteran has a current diagnosis of chronic lumbar myofascial strain, and the evidence shows that he was diagnosed with a lumbar spine strain during service, the preponderance of the evidence weighs against finding that the Veteran’s current disability began during service or is 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). The Veteran initially injured his back in May 2003. According to a formal report, the Veteran was finishing a sit-up portion of the Army Physical Fitness Test when he felt a tightening in his lower back. Later that night, his back started to hurt more. The Board notes that even though this event occurred during INACDUTRA, the military concluded that the Veteran’s injury is considered to have been incurred in the line of duty. As a result, this event constitutes an in-service injury for the purposes of VA disability compensation. However, the Veteran’s injury appears to have resolved relatively quickly as a July 2003 medical review records the Veteran’s comment that he pulled a back muscle in May 2003, but that it was “fine now.” The claims file contains no references to any further back problems until May 2006. At the Veteran’s civilian employment, he injured himself when transferring a patient when he slipped on the floor. He was diagnosed with a low back strain. The treating physician noted that he remained under care with work restrictions, anti-inflammatory medications, and outpatient physical therapy through June 2006, at which time he stated he had no complaints of pain without restrictions or further treatment. He later returned in September of that year after stating that his pain had continued. He was treated with physical therapy for two months, but the back pain never fully resolved. He again returned in February 2007, reporting a re-injury secondary to his military training. At that time, he was diagnosed with a lumbar strain. The Veteran was recommended for a medical board in April 2008 as a result of his chronic low back pain and sacral arthritis. He requested a discharge soon thereafter. Similar to the Veteran’s initial injury, the February 2007 injury constitutes an in-service injury for the purposes of VA disability compensation. Nevertheless, the Board finds that the Veteran’s current back disability is not etiologically related to military service. He first filed his claim for service connection in May 2012, only two months after another back injury at work. In March 2012, he was diagnosed with low back pain and lumbar strain after moving a patient. The Veteran filed a Worker’s Compensation Claim during that month, indicating that his injury was related to his workplace. Further, the August 2012 VA examiner opined that the Veteran’s back disability is not at least as likely as not related to an in-service injury, event, or disease, including his reported injuries during INACDUTRA. Instead, the examiner attributed the Veteran’s current back disability to his initial civilian employment injury. The examiner noted that the Veteran returned to full duty after his 2003 back strain in a matter of four weeks with no further documented back pain until 2006. During the 2006 assessment of back pain after his workplace injury, there was no mention of a prior injury or chronic back pain. 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). While the Veteran believes his back disability is related to an in-service injury, and he has training as a medical corpsman, the Board assigns more probative value to the well-reasoned and thorough rationale provided by the VA examiner, whose opinion is consistent with the medical treatment records on file. The Board finds that the weight of the competent evidence does not attribute the Veteran’s back disorder to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). 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). 4. Entitlement to service connection for a right knee disorder The Veteran asserts that he has a right knee disorder that manifested in 1995 that is related to military service. 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. The Board concludes that, while the Veteran has a current diagnosis of right patellar tendonitis, and evidence shows that he reported an occasion of right knee pain and a sprain during service, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is 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). The Veteran’s February 1995 separation examination reflects the Veteran’s complaint of swollen and/or painful joints. The physician noted that the Veteran had chronic patellofemoral syndrome (PFS). While the Veteran asserts that this notation refers to his right knee, the writing appears to indicate that he actually had PFS of the left knee. This finding would be in concurrence with the June 1994 notation in the Veteran’s service treatment record that records the Veteran’s complaint of left knee pain for two weeks. At that time, he was diagnosed with PFS of the left knee. The only indications of a right knee problem in the service treatment records include a June 1991 report of knee pain and sprain. The Board acknowledges that the Veteran has asserted that he has suffered from right knee problems since military service that are related to his prior military service. Additionally, a buddy statement supports the Veteran’s contention that their duties would rarely lead to injuries that got documented. Although the Veteran and his fellow servicemember are competent to make such an assertion, the Board notes that the Veteran has not provided an adequate rationale to explain why his March 2001 U.S. Army Reserve enlistment examination makes no mention of a knee problem. Moreover, there are also no other medical treatment records documenting knee problems despite extensive physical therapy for the Veteran’s back condition. The Board would expect for there to be some kind of documentation noting the Veteran’s complaints. Further, the August 2012 VA examiner opined that the Veteran’s right knee disorder is not at least as likely as not related to an in-service injury, event, or disease. The examiner diagnosed the Veteran with right patellar tendonitis. The examiner, agreeing with the Veteran’s interpretation that the 1995 separation examination referred to the Veteran’s left knee, still noted that the Veteran’s 2001 Army Reserve examination made no mention of knee problems. Although the Veteran reports that his right knee is painful, the Veteran’s service treatment records reflect that his left knee was causing pain. Finally, the examiner noted that there is no other medical documentation of a chronic right knee condition since separation from service. 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 assigns more probative value to the opinion of the VA examiner. The Board finds that the weight of the competent evidence does not attribute the Veteran’s right knee disorder to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). 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). 5. Entitlement to service connection for bilateral hearing loss The Veteran has filed a claim for service connection for bilateral hearing loss, which he asserts is related to military service. In cases where a hearing loss disability is claimed, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. Initially, the Board notes that the Veteran does not have hearing loss for VA disability purposes. The Veteran received an audiological evaluation in August 2012. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 20 LEFT 20 20 20 20 20 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. The examiner noted that the Veteran had normal hearing bilaterally. However, with no pure tone threshold reaching 40 decibels, a lack of 3 or more auditory thresholds 26 decibels or higher, and no speech recognition scores less than 94 percent, the examination does not demonstrate hearing loss for VA disability purposes. See 38 C.F.R. § 3.385. Based on the foregoing evidence, the Board must deny the Veteran’s claim for service connection for bilateral hearing loss. The evidence does not demonstrate the first element required for service connection—a current disability. See 38 C.F.R. §§ 3.102, 3.303, 3.385; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel