Citation Nr: 18160117 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 16-36 818 DATE: December 21, 2018 ORDER Service connection for a left shoulder disability is denied. Service connection for left knee disability, to include as secondary to right knee disability, is denied. Service connection for right knee disability is denied. An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. A left shoulder disability did not have its onset during service and did not manifest within one year of service discharge. 2. A left knee disability did not have its onset during service, was not caused or aggravated by a service-connected disability, and it did not manifest within one year of service discharge. 3. A right knee disability did not have its onset during service and did not manifest within one year of service discharge. 4. For the entire appeal period, the Veteran’s bilateral hearing loss was manifested by no worse than Level I hearing for the right ear; and no worse than Level III for the left ear. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an award of service connection for left knee disability, to include as secondary to right knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for an award of service connection for right knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86 Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1959 to March 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge in Houston, Texas. A transcript of the hearing is associated with the claims file. In January 2018, these matters were remanded for additional development. The Board noted during the January 2018 remand, that the Veteran perfected an appeal of his claim to entitlement to service connection for sleep apnea. However, as the Veteran requested a Board hearing in the matter that had yet to occur, the Board will not move forward with decision on the issue of service connection for sleep apnea. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The Board notes, however, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for a left shoulder disability The Veteran contends that his current left shoulder disability is due to his military service, to include an in-service left shoulder complaint. The Veteran’s service treatment records (STRs) show he was treated in March 1961 for a bruised left shoulder playing basketball. Review of Houston VA Medical Center (VAMC) treatment records show the Veteran was seen for left shoulder pain with X-ray in February 2014 that showed degenerative changes. He has received continued treatment since for left shoulder pain. During July 2015 VA examination the examiner reviewed the claims file and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness. The examiner reasoned that the Veteran had a shoulder injury in 1961 and was treated for it. The following year at time of separation examination, the Veteran had not mentioned about the shoulder injury or pain. Also, the Veteran had signed the certificate of physical condition stating no change in March 1962 for the same effect. Hence the examiner found that the left shoulder condition likely resolved in one year. During April 2018 VA examination, the examiner diagnosed acromioclavicular joint osteoarthritis, but stated that the condition was less likely than not due to the in-service injury. According to the examiner’s rationale the in-service shoulder injury resolved and was not noted at the Veteran’s separation physical. Based on the foregoing, the Board finds that service connection for a left shoulder disability is not warranted in this case. The record indicates that the Veteran has a diagnosis of degenerative disease dating from approximately 2014. The service records do not indicate the presence of a chronic left shoulder disability in service, nor is there any indication of left shoulder arthritis within one year of active service. In addition, the examiners that have looked at the question have opined that the left shoulder disability was not due to service, to include his one noted in-service complaint. There is no contrary opinion of record. The Veteran has contended on his own behalf that his left shoulder disability is related to service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that are observable and within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 Fed. Cir. 2009). In this case, however, the question of whether left shoulder disability is related to military service is a complex medical question that is not subject to lay observation alone. Hence, the opinions of the Veteran in this regard are not competent in this case. Additionally, even though arthritis is a chronic disease and could serve as an independent basis for an award of service connection if proven, the lay evidence does not establish continuity of symptomatology here. Indeed, the evidence does not indicate the presence of left shoulder arthritis until many years after service. As such, continuity of symptomatology from service is not shown in this case and cannot serve as a basis for service connection. In summary, the medical evidence in this case is against the claim. As such, the preponderance of the evidence is against service connection. Reasonable doubt does not arise and the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for right and left knee disabilities The Veteran asserts that his right knee disability is due to an in-service injury; and that his left knee disability is due to service or in the alternative to the right knee disability. The STRs show the Veteran was seen in April 1961 for a right knee contusion. There is no documentation of left knee injury or complaints. Review of Houston VAMC treatment records show he was seen for bilateral knee pain and had X-rays in February 2014 that showed minimally degenerative changes, bilaterally. The Veteran receives continued treatment since February 2014 for bilateral knee disability. During the July 2015 VA examination, the examiner reviewed the claims file and opined the current right knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran sustained a right knee injury while playing basketball during his military service; however, the injury was treated. X-rays done in 1961 the following year showed no residuals of the knee injury. He indicated the knee injury likely resolved. Further he noted that there was a gap from the in-service injury until the x-ray diagnosed knee arthritis in 2014. During the April 2018 VA examination, the examiner diagnosed osteoarthritis of the knees, but stated that this condition was less likely than not due to the in-service knee injury. According to the examiner’s rationale, the in-service right knee injury resolved and there was no mention of a knee injury at his separation physical. Regarding the left knee, the examiner noted there was no left knee injury in service. He indicated that the Veteran’s current bilateral knee arthritis is more likely due to the aging process. At the outset, regarding the secondary service connection theory of entitlement, i.e., that his claimed left knee disability is secondary to right knee disability, service connection for right knee disability is not warranted, thus the secondary service connection claim lacks legal merit, and the appeal in the matter is denied in based on this theory. See 38 C.F.R. § 3.310. Regarding direct service connection, the STRs show no complaints pertaining to his left knee. The Board concludes that, although the Veteran complains of left knee pain, the preponderance of the evidence weighs against finding that the claimed left knee disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Post-service treatment records show treatment for left knee arthritis beginning in 2014. However, the VA examiner found in April 2018 that the Veteran’s left knee degenerative disease is not related to his military service as the STRs show no complaints of or treatment for a left knee disability; and more likely related to the aging process. Although the Veteran is competent to report having experienced symptoms of left knee pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a left knee disability. The issue is medically complex, as it requires knowledge of the musculoskeletal system and interpretation of complicated diagnostic medical testing. Further, although the Veteran believes his left knee pain is related to his military service, he is not competent to provide a nexus opinion in this case. As noted, this issue is medically complex. Thus, the Board finds there is no competent and credible evidence of record linking the left knee disability to service. Regarding the right knee, the Veteran currently has a right knee disability, satisfying the current disability requirement for service connection. Further, the STRs document an in-service right knee injury. Therefore, the Board finds that the in-service incurrence of an injury or disease requirement for service connection is met. The Board finds, however, there is no probative medical evidence that the current right knee disability is related to the in-service right knee injury. The VA examiner essentially noted that there is no indication the Veteran’s current right knee disability is related to the one right knee injury sustained in service, and there was no noted complaints or treatment until 2014, several years post service. The Veteran claims his current right knee disability is related to service; however, he is not competent to determine that a single right knee injury sustained in service several years prior to post-service formal treatment is the cause of the right knee disability he currently experiences. That determination is a complex etiological question not susceptible to lay analysis. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). As such, the Board affords little probative value to his statements. The Board finds that the most probative evidence of record shows that there is no nexus between the in-service event and the current right knee disability, and therefore the nexus requirement for service connection is not met. In this case, the Board finds that although there is documentation of in-service right knee injury, there is less likely than not a nexus between the injury and the Veteran’s current right knee disability. Accordingly, the claim for service connection for a right knee disability is denied. An initial compensable rating for bilateral hearing loss Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to VA’s rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Other than exceptional cases, VA arrives at the proper designation of hearing loss in each ear by mechanical application of Table VI; Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. Further, when the average pure tone threshold is 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Id. Table VIa, “Numeric Designation of Hearing Impairment Based Only on Pure tone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on pure tone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Initially, the Board notes that the audiological evaluation on file during the appeal period does not show that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; or that the average pure tone threshold is 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz. Therefore, the Veteran does not have an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.85(a), and those regulatory provisions are not for consideration in the instant case. Historically, the Veteran was awarded service connection for bilateral hearing loss with a noncompensable rating assigned by way of the August 2015 rating decision on appeal. In September 2015, the representative at that time submitted a Notice of Disagreement (NOD) with the 0 percent rating assigned. During the July 2015 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 40 55 75 LEFT 35 35 45 60 75 Utilizing the numbers set forth above, the examiner found that the Veteran’s average right ear decibel loss was 51dB and left ear decibel loss was 54dB. The Veteran’s Maryland CNC word list showed 92 percent speech discrimination in the right ear and 92 percent speech discrimination in the left ear. The examiner indicated that the Veteran’s bilateral hearing loss had an impairment on the ordinary conditions of daily life, as the Veteran reported he has difficulty with communication. She indicated that the Veteran's bilateral hearing loss did not affect his ability to work. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. Using Level I hearing and Level I hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a 0 percent rating. During the September 2016 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 55 85 LEFT 30 30 50 65 90 Utilizing the numbers set forth above, the examiner found that the Veteran’s average right ear decibel loss was 51dB and left ear decibel loss was 59dB. The Veteran’s Maryland CNC word list showed 94 percent speech discrimination in the right ear and 88 percent speech discrimination in the left ear. The examiner indicated that the Veteran’s bilateral hearing loss had an impairment on the ordinary conditions of daily life and his job as a salesperson, as the Veteran reported he has difficulty with communication. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in the right ear and Level III hearing acuity in the left ear. Using Level I hearing and Level III hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a 0 percent rating. During the April 2018 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 50 70 LEFT 35 35 45 65 75 Utilizing the numbers set forth above, the examiner found that the Veteran’s average right ear decibel loss was 50dB and left ear decibel loss was 55dB. The Veteran’s Maryland CNC word list showed 100 percent speech discrimination in the right ear and 96 percent speech discrimination in the left ear. The examiner indicated that the Veteran’s bilateral hearing loss had an impairment on the ordinary conditions of daily life, as the Veteran reported he has difficulty with communication and hearing the television. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. Using Level I hearing and Level I hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a 0 percent rating. Based on the results of the audiological evaluation discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the hearing loss has not approximated the criteria for a compensable (10 percent) evaluation at any time during this appeal. Although the Board sympathizes with the Veteran’s belief that he should be assigned a compensable rating on the basis that his hearing loss has increased in severity, the Board has no discretion in this matter and must predicate its determination based on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet App. 345 (1992). Thus, the assignment of a compensable rating is not warranted. To the extent that he contends that his hearing loss is more severe than the rating that is currently assigned, the Board observes that the Veteran, although competent to report that he has difficulty hearing, is not competent to report that his hearing acuity is of sufficient severity to warrant increased compensation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Despite the foregoing, the Board acknowledges the Veteran’s report regarding the severity of his bilateral hearing loss, to include difficulty with communication. After considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for additional compensation other than that to which he was found to be entitled to above are not met. See Lendenmann, supra. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. McPhaull, Counsel