Citation Nr: 18154399 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-55 642 DATE: November 29, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. FINDING OF FACT A right ear hearing loss disability was not manifested in service or in the following year, and the preponderance of the evidence is against a finding that the Veteran’s right ear hearing loss disability is etiologically related to his service. CONCLUSION OF LAW Service connection for right ear hearing loss disability is not warranted. 38 U.S.C. § § 1110, 1112, 1113, 5107; 38 C.F.R. § § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1990 to December 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 Department of Veterans’ Affairs (VA) rating decision which denied service connection for a bilateral knee disability and right ear hearing loss, and granted service connection for left ear hearing loss. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include sensorineural hearing loss (SNHL) as an organic disease of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period postservice (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity. See 38 C.F.R. § 3.303(b). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for right ear hearing loss is denied. The Veteran contends that his right ear hearing loss disability should be service connected on the same basis that service connection was granted for his left ear hearing loss. For VA purposes, a hearing loss disability is defined as: “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.” 38 C.F.R. § 3.385. The Veteran’s service occupation (Air Delivery Specialist) involved exposure to noise, and it may be reasonably conceded that he was exposed to significant levels of noise in service. Audiometry on the Veteran’s service entrance examination in December 1990 revealed that puretone thresholds, in decibels were: 500 1000 2000 3000 4000 R 5 0 10 15 5 L 10 0 15 15 15 On service separation examination audiometry in October 1994 puretone thresholds were: 500 1000 2000 3000 4000 R 10 5 10 15 5 L 10 5 15 20 15 On May 2016 VA examination audiometry, puretone thresholds were: 500 1000 2000 3000 4000 R 15 10 20 35 40 L 15 10 25 35 40 Speech discrimination testing (by Maryland CNC Test) revealed speech discrimination scores of 96% for the right ear and 94% for the left. The examiner noted, that the Veteran’s audiograms in service showed a significant [puretone] threshold shift (from 30 decibels to 50 decibels) at 6000 hertz in the left ear from service entrance audiometry to separation examination audiometry in October 1994, but did not show such a significant shift in the right ear during service. The examiner opined that therefore the Veteran’s current left ear hearing loss disability was at least as likely as not related to service, but the right ear hearing loss disability was less likely than not related to service. The examiner noted that the Veteran worked as a prison guard for 20 years and opined that his right ear hearing loss could have resulted from civilian occupational noise (which included from required annual weapons qualification at the firing range). It is not in dispute that the Veteran has a right ear hearing loss disability; a bilateral hearing loss was found by audiometry on May 2016 VA examination. As noted above, it is also not in dispute that during service he was exposed to significant levels of noise. What remains needed to substantiate this claim is competent evidence of a nexus between the current right ear hearing loss disability and Veteran’s service/exposure to noise therein. A right ear hearing loss disability is not shown to have been manifest in service or documented postservice until many years following the Veteran’s separation from service. Consequently, service connection for right ear hearing loss on the basis that it became manifest in service and persisted or on a chronic disease presumptive basis (under 38 U.S.C. § 1112) is not warranted. As there is no evidence of continuity of hearing loss for many years following discharge (and existence of a SNHL disability is beyond the capability of a lay observation, but under 38 C.F.R. § 4.85 must be established by diagnostic studies), service connection under a continuity theory of entitlement is also not warranted. Whether a hearing loss disability first manifested many years after service may be related to exposure to noise in such remote service, is a medical question. It is beyond the scope of common knowledge or capability of lay observation, but requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only competent (medical) evidence in the record that addresses the question is in the opinion by the May 2016 VA examiner. The provider is a medical professional competent to offer the opinion; expressed familiarity with the record; included rationale that cites to accurate factual data (including the absence of related complaints or findings during service) and identified a postservice etiological factor (occupational noise) for the right ear hearing loss. The examiner specifically identified the basis for distinguishing the right ear from the left (a significant puretone threshold shift in service in the left ear, but the not the right). The opinion is probative value in this matter, and in the absence of competent (medical) evidence to the contrary is persuasive. The Veteran is a layperson, and does not profess to have medical expertise (or cite to supporting medical opinion or literature). His own opinion is not probative evidence in this matter. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Therefore, the preponderance of the evidence is against this claim, and the appeal in this matter must be denied. REASONS FOR REMAND Entitlement to service connection for a bilateral knee disability is remanded. The Board has found the May 2016 VA examination inadequate for rating purposes. The provider indicated that there was no diagnosis of a knee disabilities (but did not reconcile that conclusion with the Veteran’s reports of knee pain and his occasional use of knee braces). Evidence received since shows the Veteran is being treated for bilateral knee pain, and a December 2016 MRI revealed a left knee medial meniscal tear. Accordingly, another examination to confirm the presence and ascertain the etiology of the claimed right and left knee disabilities is necessary. The matter is REMANDED for the following: 1. Obtain for the record all outstanding (updated to the present) records of VA evaluations and treatment the Veteran has received for his knees since December 2016 (when the most recent treatment records currently associated with the claims file are dated). Also ask him to identify any private treatment he may have received during that time (and secure records of such treatment). 2. After the development requested above is completed, arrange for an orthopedic examination of the Veteran to confirm the presence and ascertain the nature and likely etiology of his claimed right and left knee disabilities. The entire record, must be reviewed by the examiner. The examiner should provide responses to the following: (a) Identify (by diagnosis) each right and left knee disability found on examination/shown during the pendency of the claim. If no knee disability is diagnosed, reconcile such finding with the December 2016 MRI findings. (b) Identify the likely etiology for each right and left knee disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that it is etiologically related to the Veteran’s service and his complaints noted and activities therein? The examiner should include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Robert Cordingley, Associate Counsel