Citation Nr: 18159354 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-35 499 DATE: December 18, 2018 ORDER 1. Entitlement to service connection for osteoarthritis in the right knee (claimed as right knee condition and right knee replacement) is granted. 2. Entitlement to service connection for tinnitus is denied. 3. Entitlement to a higher (compensable) initial disability rating for bilateral hearing loss is denied. REMANDED 1. Entitlement to service connection for a back disorder is remanded. 2. Entitlement to service connection for prostate cancer, including as due to herbicide exposure, is remanded. 3. Entitlement to service connection for diabetes, including as due to herbicide exposure, is remanded. REFERRED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran is currently diagnosed with osteoarthritis in the right knee. 2. Symptoms of a right knee disability began in service and have been continuous since service. 3. The Veteran does not currently have tinnitus. 4. The Veteran's service-connected bilateral hearing loss is manifested by no worse than Level I loss for both the right and left ears on Table VII. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for osteoarthritis in the right knee have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from July 1969 to August 1989 during the Vietnam Era and in Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from both an August 2015 rating decision (RD) and a November 2015 RD by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The August 2015 RD denied service connection for tinnitus and osteoarthritis in the right knee, but granted service connection for bilateral hearing loss and assigned a 0 percent initial rating. The November 2015 RD denied service connection for a back condition, prostate cancer, and diabetes. The Veteran timely filed NODs for each claim addressed in both RDs. The NODs also raised the issue of TDIU, which has not yet been adjudicated by the RO and is here referred. A statement of the case (SOC) regarding his claims for a compensable rating for hearing loss and service connection for tinnitus and osteoarthritis in the right knee was issued in July 2016. On that same date, the RO issued a separate SOC on the issues of service connection for back condition, prostate cancer, and diabetes. The Veteran filed a substantive appeal for all six claims (and TDIU) in July 2016. The Veteran declined a hearing, and the Board now considers the claims. Service Connection Legal Authority Service connection may be granted for a disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires: (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 evidence of a nexus between the claimed in-service disease or injury and the current disability. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In evaluating a service connection claim, evidence of a current disability is an essential element, and where not present, the claim under consideration cannot be substantiated. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability"). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. See 38 U.S.C. 1154(a); 38 C.F.R. 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or cause when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Service Connection for Osteoarthritis in the Right Knee The Veteran contends that in-service and post-service right knee injuries and pain are evidence of chronic symptoms of current osteoarthritis in the right knee. The Board finds that the Veteran has a current right knee disability. An August 2015 VA examination reflects that a diagnosis of osteoarthritis in the knee, as demonstrated by x-rays. Private medical records indicate that the Veteran had right knee replacement surgery in February 2012 and treatment prior to and following his surgery. The Veteran is currently diagnosed with osteoarthritis in the right knee, which, as arthritis, is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Next, the Board finds that the Veteran experienced chronic symptoms of osteoarthritis in the right knee through injuries and pain during service. Significantly, the March 1969 service entrance examination noted no knee conditions. The Veteran attested in an October 2016 affidavit that the right knee was first injured while he was performing aircraft maintenance in 1973. He explained that he (and his co-workers) commonly exited airplanes by jumping down from the tail ends, which have about a six foot drop down to the ground. During a routine jump down from an airplane in 1973, the Veteran landed wrongly, causing the right knee to swell up. He attested that he received medical treatment, although there are no service treatment records (STRs) for that incident. There is a STR for a knee and ankle injury in 1973, but it is noted as a softball injury and does not specify which knee was injured. The STRs reference at least two other right knee injuries in-service—a mild contusion in 1980 from an assault on base and a sprain in 1988 from twisting his knee while carrying a freezer up an aircraft ladder. A 1988 radiology report of the knee noted normal density and trabeculation and no fractures. In-service medical examinations in 1980 and 1983 noted recurring knee pain (one references a motorcycle accident as contributing to his knee pain, but there is no further information about this in the record). In his May 1989 exiting medical examination, knee concerns again are noted and his 1988 right knee injury is referenced. Based on these consistent right knee reports of injury and pain, the Board finds that the Veteran has shown in-service symptoms of his current right knee disability. The evidence shows that the Veteran experienced continuous post-service symptoms of right knee arthritis. Upon retirement in August 1989, the Veteran immediately applied to VA for compensation for his knee pain (and other medical conditions), but that September 1989 application was deferred and not resolved. The Veteran attested in an October 2016 affidavit that knee pain progressively worsened over time, necessitating pain medication (both prescribed and over-the-counter) and knee supports, and that as of 2001 the knee pain worsened to the point of interference with sleeping, the ability to stand and sit for long periods of time, capacity to climb stairs, and employability. In 2012, the Veteran had right knee replacement surgery and then received post-surgery treatment. The Veteran’s spouse attested in an October 2016 affidavit that the knee condition has worsened over time and now limits the Veteran’s physical activities. They both asserted that the Veteran stopped working in 2001 because a Federal Express delivery job was too physically demanding. The Veteran is competent to discuss his work experiences and some symptoms of the knee disorder he experiences at any time, including during service, and the Board finds his statements to be consistent, credible, and probative. The spouse’s affidavit further bolsters his statements. In a 2015 VA examination report, the VA examiner opined that the knee replacement surgery and osteoarthritis were most likely caused by post-service activities and natural age progression, and not the mild knee contusion and strain while in service. While the Board finds that the VA examiner is competent and credible to make medical assessments, the Board does not find his opinion to be probative regarding causation because the examiner did not consider the two in-service knee injuries in 1973, nor did this VA examiner mention the Veteran’s consistent reports of knee pain during service. These are material facts that affect the weight of the opinion. The Board finds that the weight of the medical and lay evidence of record is at least in equipoise on the questions of whether the Veteran had in-service chronic symptoms and continuous post-service symptoms of a right knee condition since service separation in August 1989. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for osteoarthritis in his right knee have been met. See 38 C.F.R. § 3.303(b). Because presumptive service connection is being granted, all other theories of service connection are rendered moot. 38 C.F.R. § 3.303(a)-(b), (d). As such, the negative nexus opinion of record on the question of direct nexus between his current knee condition and his in-service knee injuries and pain need not be considered. 2. Service Connection for Tinnitus The Veteran contends that he should be service connected for tinnitus. A veteran is competent to report tinnitus at any time. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). A medical diagnosis is not required. In the present case, the Veteran has not credibly asserted a current disability, as he did not report tinnitus at any time prior to or during the claim period, except when initiating the claim, and provided no specific details. The private medical records, which include a hearing test in October 2014, do not contain any reports by the Veteran of tinnitus or ringing in the ears. Furthermore, at an August 2015 VA auditory examination, the VA examiner specifically addressed tinnitus, noting that the “Veteran clearly and unmistakably denied tinnitus.” The Veteran did not report tinnitus in an October 2016 affidavit when discussing hearing loss in detail (as well as his other claimed disabilities). The wife’s October 2016 affidavit also does not mention ringing in the Veteran’s ear or tinnitus, although wife discussed hearing loss and other disabilities. For these reasons, the Board finds that the weight of the lay and medical evidence shows no ringing in the ears or tinnitus. The only time the Veteran mentions “ringing in ears” is on the May 2015 application for disability compensation. The Veteran also mentions “tinnitus” only in his NODs and appeals, but without any detailed information about this claim. The inconsistent reports of tinnitus are not supported by the record. As such, the Board finds his scant lay assertions of tinnitus to be competent, but not credible to show current tinnitus; thus, the assertions lack probative value when considering a lack of reporting of tinnitus symptoms to private and military doctors, as well as his lack of statements about tinnitus symptoms in his affidavit. For these reasons, the Board finds that the weight of the medical and lay evidence shows that the Veteran does not have current tinnitus. As the preponderance of the evidence is against this claim, service connection for tinnitus is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Disability Rating Criteria Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned, if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are derived from the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345(1992). Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. 38 C.F.R. § 4.85(a). Numeric designations of Levels I through XI are assigned by application of Table VI, in which the percentage of discrimination is intersected with the pure tone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII, for a percentage rating. A pure tone threshold average, as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. That average is used in all cases, including those in 38 C.F.R. § 4.86, to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85(d). Where pure tone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b). 3. Initial Disability Rating for Hearing Loss The Veteran contends that the 0 percent initial rating for service-connected sensorineural hearing loss should be higher. He asserts that hearing loss has worsened since service, negatively affects the ability to communicate with others, and is more severe than the 0 percent assigned. At an August 2015 VA auditory examination, hearing was recorded as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 30 55 60 55 50 LEFT 25 65 65 70 56 (56.22 rounded down) Additionally, speech audiometry testing using a Maryland consonant-vowel nucleus-consonant (CNC) word list found speech recognition ability of 94 percent in each ear. Applying the method for evaluating hearing loss to the results of the audiology evaluation and using Table VI, the August 2015 examination audiometric evaluation found Level I hearing acuity in the right ear, as well as Level I in the left ear. Application of those findings to Table VII corresponds to a 0 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. The VA examiner assessed mild hearing loss in both ears and set forth the functional effects of the Veteran's hearing disability, including a finding that the bilateral hearing loss made communication difficult. This comports with the Veteran’s statements during the VA examination and in his October 2016 affidavit, in which he attested that the hearing loss impacts the ability to understand people and is very frustrating. The Veteran also provided a private hearing test, dated October 2014. This test also demonstrated hearing loss, but did not provide information about speech discrimination, as required by VA law. As the VA examination is more recent and has the necessary criteria, the Board here utilized those results. The Veteran's hearing loss symptoms and manifestations are fully contemplated by the rating criteria of Diagnostic Code 6100. The Veteran's difficulty communicating is neither unusual nor exceptional. The rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board concludes that the preponderance of the evidence is against entitlement to a compensable rating for bilateral hearing loss; therefore, the appeal for a higher rating is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND In the present case, VA has obtained the STRs and VA treatment records. VA has not tried to procure all of the relevant private medical records. The Veteran attested that he has received treatment for his back condition, prostate cancer, and diabetes after service, but the record in this case contains no medical documentation regarding the diagnosis or treatment of any of these conditions. Without such records, the evidence does not demonstrate current disabilities in support of the claims. It does not appear that the Veteran has been provided with VA examinations for the back disorder, prostate cancer, or diabetes. Accordingly, the case is REMANDED for the following actions pertaining to the Veteran’s claims for service connection for any back condition, prostate cancer, or diabetes: 1. Contact the Veteran and request information as to any outstanding private treatment records, including any diagnoses and treatment for back disorder, prostate cancer, and/or diabetes. 2. Schedule a VA examination(s) to identify any current back disorders, prostate cancer, and diabetes. For any diagnosed disorder, the examiner should offer opinions as to the etiology of each condition. Is it at least as likely as not (50 percent or greater probability) that one or more back conditions were incurred in or caused by active service? In rendering this opinion, the VA examiner should address whether any diagnosed back condition is due to, or consistent with, the Veteran’s reported history of back injury as a result of heavy lifting of equipment during service. Is it at least as likely as not (50 percent or greater probability) that prostate cancer is the result of a disease or injury in active service, or had its onset in such service. In rendering this opinion, the VA examiner should address whether diagnosed prostate cancer is due to, or consistent with, the Veteran’s reported history of exposure to herbicide during service. Is it at least as likely as not (50 percent or greater probability) that diabetes is the result of a disease or injury in active service, or had its onset in such service. In rendering this opinion, the VA examiner should address whether diagnosed diabetes is due to, or consistent with, the Veteran’s reported history of exposure to herbicide during service. 3. Readjudicate the issues of service connection for any back disorder, prostate cancer, and diabetes. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel