Citation Nr: 18155016 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-50 187 DATE: December 4, 2018 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran has not had a right knee disability during the appeal period. 2. The Veteran has not had a bilateral hearing loss disability for VA purposes during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active service from April 2003 to August 2003, from June 2007 to November 2008, and from January 2009 to September 2011. Service Connection, Generally Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a),(b), 3.309(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a right knee disability In July 2012, the Veteran filed a claim for service connection for a right knee disability. The Veteran was provided a VA examination of his right knee in June 2016. At that time, the Veteran reported that he was seeking service connection for a right knee disability due to service, or as secondary to, his service-connected back condition. He reported that the right knee would ache and hurt with use when his “back was bad” and with activity in the service, but in the last 18 months or more he reported that he has had no symptoms. He denied locking, sticking, swelling, or limits in activity with the knee. The examiner stated that the Veteran demonstrated no symptoms of swelling, loss of strength or instability. The examiner stated that the Veteran had no limitations of the right knee during the examination and did not provide a diagnosis of a right knee disability. The Veteran’s service treatment records are silent for treatment of a right knee disability during his period of service. In a Report of Medical History completed in May 2010, the Veteran denied history of “knee trouble.” He also underwent a VA examination in September 2010 prior to discharge from active service. At that time, the Veteran reported left knee difficulties and both knees were evaluated. The examiner stated that the right knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. Range of motion of the right knee was reported to be within normal limits and no diagnosis of a right knee disability was provided. The other medical evidence of record, including treatment records from the VA Portland Health Care System and medical records received from the Social Security Administration (SSA) do not provide evidence of a right knee disability during the appeal period. Further, these records do not provide history of treatment of symptoms that have been attributed to the right knee during the appeal period. The Board finds that the evidence of record weighs against a finding that the Veteran has had a diagnosis of a right knee disability during the appeal period; accordingly, service connection for a right knee disability must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The only evidence in support of a right knee disability is the lay statements provided by the Veteran in his initial claim for a right knee disability, his appeal of the denial of service connection, and his reports of prior right knee symptoms during his 2016 VA examination. The Board, however, finds these statements to be outweighed by the normal findings of the two VA examinations of record and treatment records that do not demonstrate reports of a right knee disability or treatment for right knee symptoms. The Board notes that in Saunders v. Wilkie, the Federal Circuit held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Here, however, none of the medical evidence of record has demonstrated functional impairment related to the Veteran’s previous reports of knee pain. Moreover, no functional limitations of the right knee were reported by either VA examiner. Accordingly, the Board finds that the evidence of record does not support that the Veteran has had a right knee disability during the appeal period, even considering the Veteran’s reports of pain. The Board notes that the Veteran’s medical records do contain multiple reports of “pain down to the knee level” in relation to his service-connected back disability. These records have not identified this pain as a knee disability on its own but radicular symptoms related to the Veteran’s back disability, and the records contain multiple diagnoses of lower extremity radiculopathy and sciatica. To the extent that these symptoms are what the Veteran is seeking service connection for, the Board notes the Veteran’s back disability is already service-connected and service connection for radiculopathy, lower right extremity was granted in a January 2017 rating decision. As the weight of the evidence of record does not support that the Veteran has had a right knee disability during the appeal period, service connection for a right knee disability must be denied. In the absence of proof of a present disability, there can be no valid claim. See Brammer, 3 Vet. App. at 225. As the preponderance of the evidence is against the Veteran’s claims, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); see also Gilbert, 1 Vet. App. at 55 (1990). Entitlement to service connection for a bilateral hearing loss disability The Veteran has also claimed entitlement to service connection for bilateral hearing loss, which he has asserted arose as a result of in-service acoustic trauma. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. See 38 C.F.R. § 3.385 (2017). For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. Prior to separation from service, the Veteran underwent a VA examination, including an audiological examination due to reports of tinnitus. During the examination, the Veteran reported a history of noise exposure due to use of firearms and the use of vehicles, such as motorcycles. Based upon these reports, the Veteran’s exposure to acoustic trauma in service is conceded. Unfortunately, the audiological examinations of record fail to demonstrate a hearing loss disability as defined by VA regulation during the appeal period. 38 C.F.R. § 3.385. In September 2010, the Veteran’s audiometric evaluation provided the following results: HERTZ 1000 2000 3000 4000 AVG RIGHT 10 5 15 15 11.25 LEFT 10 10 20 15 13.75 Speech discrimination scores, performed with the Maryland CNC word list were 100 percent, bilaterally. The examiner reported that based upon the Veteran’s audiologic results that the Veteran did not have hearing loss for VA purposes and medical follow up was not recommended. In June 2016, the Veteran’s hearing was evaluated in another VA examination that provided the following results: HERTZ 1000 2000 3000 4000 AVG RIGHT 5 5 5 10 6.25 LEFT 5 10 15 10 10 Speech discrimination scores, performed with the Maryland CNC word list were 100 percent for the right ear, and 94 percent for the left ear. The examiner reported that the Veteran had normal hearing in each ear and did not provide a diagnosis of hearing loss. The other medical evidence of record, including treatment records from the VA Portland Health Care System and medical records received from the SSA do not provide evidence of a hearing loss disability during the appeal period. Competent evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Unfortunately, the evidence of record does not support a finding that the Veteran has a hearing loss disability for VA purposes. The Veteran statements of record regarding his observable symptoms, such as hearing difficulty, are probative evidence. See Layno, 6 Vet. App. 465. While the Veteran is competent to report decreased hearing acuity subsequent to his period of active service, the diagnosis of a hearing disability for VA purposes, however, is based on objective audiometric testing and is not simply determined based on mere personal observation by a layperson. See 38 C.F.R. § 3.385. Thus, the question of whether the Veteran has a hearing disability for VA purposes does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge in the field of audiology, including audiometric testing. See Jandreau, 492 F.3d at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As no competent evidence has been provided indicating that the Veteran has had a hearing loss disability for VA purposes during the appeal period, the Board finds that the Veteran’s claim for hearing loss must be denied. See Brammer, 3 Vet. App. at 225. As the preponderance of the evidence is against the Veteran’s claim for service connection, there is no reasonable doubt to be resolved, and the claim for service connection for bilateral hearing loss must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. The evidence indicates that adequate notice was provided to the Veteran and that VA complied with the requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159(b). 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board also concludes that VA’s duty to assist has been satisfied with regard to the issues decided on appeal. The Veteran’s service treatment records, VA treatment records, identified private treatment records, and records from SSA have been associated with the claims file. Also, the Veteran has not identified any outstanding records that are relevant to the claims being decided on appeal. (Continued on the next page)   The Veteran was also afforded VA examinations related to his claims for service connection for a right knee disability and bilateral hearing loss. The Board finds that the examinations provided are adequate to adjudicate the issues decided on appeal. The examination reports reflect review of the claims file, discuss the relevant evidence of record, and address the contentions of the Veteran. Therefore, the Board finds that the duty to assist has been satisfied and there is no reasonable possibility that further assistance would be capable of substantiating the claims decided on appeal. 38 U.S.C. § 5103A (a)(2) (2012). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel