Citation Nr: 18161181 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-08 389 DATE: December 28, 2018 ORDER Service connection for a right knee disorder is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran did not suffer an in-service incident, illness, or injury to which his right knee disorder may be etiologically linked. 2. The Veteran does not have a current diagnosis of right ear hearing loss for VA compensation purposes and his left ear hearing loss was not caused by or related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service while on active duty for training (ACDUTRA) from June 1985 to August 1985. The Board acknowledges that the Veteran has not been provided with a VA examination in connection with his claim seeking service connection for a right knee disorder and that his former representative requested such an examination. However, VA has not duty to provide an examination because there was no in-service incident or injury involving his right knee and a right knee disorder did not manifest until many years after his service. The medical evidence of record is sufficient to make an adequate determination of his claim. Service Connection 1. Entitlement to service connection for a knee disorder 2. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his right knee disorder and bilateral hearing loss were caused by or are related to his active duty service. 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. 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). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. 1112, 1113; 38 C.F.R. 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. 3.309(a). See 38 C.F.R. 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. 3.303(a). 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. Service connection for a current hearing loss disability is not precluded by 38 C.F.R § 3.385 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 from 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 a 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 that 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. Hensley, 5 Vet. App. at 159. Based upon the evidence of record, the Board concludes that the preponderance of the evidence weighs against finding that service connection is not warranted for the Veteran’s right knee disorder or his bilateral hearing loss. See 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), 3.304, 3.307, 3.309. Initially, with respect to the Veteran’s claim seeking service connection for a right knee disorder, the Board observes that it is unclear from the evidence whether the Veteran has a presently diagnosed right knee disorder. Nevertheless, assuming without deciding that he does have a presently diagnosed right knee disorder, service connection is not warranted because of the absence of an in-service incident or injury. Specifically, the Board has reviewed his service treatment records and military personnel records and found no evidence of any knee injuries or other issues to which his current chronic knee pain may be linked. There is no competent evidence of the requisite in-service injury or disease. Accordingly, the Veteran cannot establish the second element of a claim for service connection and his claim seeking service connection for a right knee disability must be denied on this basis. Further, the Board observes that there is no evidence indicating a relationship between the Veteran’s service and his chronic knee pain. Specifically, his service treatment records fail to show that his right knee disorder began in or is related to his active duty service because they do not reflect reports of or treatment for any right knee injuries, or other injuries that could have caused the Veteran’s right knee pain. In fact, the report from his July 1988 examination (the Veteran declined a separation examination) reflects that the examining physician determined that his lower extremities were normal. Additionally, in his 1988 report of medical history, the Veteran indicated that he did not experience trick or locked knees and that he was in “good health.” Further, the post-service evidence does not indicate that the Veteran has experienced continuous symptoms related to his right knee disorder. Here, the evidence indicates that he did not seek treatment for knee pain until November 2013, more than 28 years after his active duty service during ACDUTRA. Therefore, continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). There is no evidence of a right knee injury during any period of inactive duty for training or of a right knee injury or disease during any period of active duty for training. The Board acknowledges the statements from the Veteran regarding the history of symptoms of his right knee disorder have been chronic. While the Veteran is competent to report that he experienced symptoms, including pain, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent that he asserts that his right knee disorder has persisted since service, the Board determines that his reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the gap of more than 28 years in seeking treatment for his right knee disorder weighs against his claim. Moreover, the report from the July 1988 examination and the July 1988 report of medical history contradict his statements that his right knee disorder has persisted since service. Finally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his right knee disorder and active service. Next, with respect to the Veteran’s hearing loss claim, the Board initially finds that he does not have right ear hearing loss as defined by VA. See 38 C.F.R. § 3.385. Specifically, the report from the April 2014 VA examination shows that he does not have hearing loss under 38 C.F.R. § 3.385 because he did not have auditory thresholds of 40 decibels or greater in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz, auditory thresholds of 26 decibels or greater for at least three of those frequencies, or speech recognition scores less than 94 percent. In fact, the report from the April 2014 VA examination shows that he did not have any auditory thresholds exceeding 35 decibels in his right ear, that auditory thresholds exceeded 26 decibels only at the 1000 Hz and 4000 Hz thresholds, and that his speech recognition score was 96 percent in his right ear. The record is devoid of any evidence controverting the report from the April 2014 VA examination. Accordingly, the Veteran cannot establish the existence of right ear hearing loss. With respect to the Veteran’s left ear, his service treatment records do not reflect any complaints, signs, symptoms, or a diagnosis related to left ear hearing loss. Indeed, the report from the July 1988 examination reflects that his ears were “normal,” the audiological evaluation performed there did not show hearing loss as defined by VA, and his July 1988 report of medical history reflects that he reported that he had not experienced hearing loss and that he was in “good health.” The board also notes that the Veteran’s specialty was that of a food service specialist, cook, which has a low probability of exposure to hazardous noise. Further, the post-service medical evidence reflects that the Veteran has never sought treatment for hearing loss in either ear. Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for left ear hearing loss is not warranted because it did not manifest to a degree of 10 percent or more within a year of separation from active service. See 38 C.F.R. § 3.307(a). Next, the Board observes that the Veteran is competent to report symptoms of left ear hearing loss. However, the record is devoid of any evidence demonstrating a continuity of symptomatology because the evidence reflects that the Veteran has not sought treatment for left ear hearing loss. Accordingly, service connection for left ear hearing is not warranted based on continuity of symptoms. Moreover, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s left ear hearing loss to active duty. Here, the Board places significant weight on the opinions of the April 2014 VA examiner who performed a detailed review of the Veteran’s service and medical treatment records and a thorough physical examination. Based on her review of such records and her in-person examination, the examiner opined that the Veteran’s left ear hearing loss is not related to service. In support of her opinion, the examiner explained that his left ear hearing loss was not related to service because the threshold shifts for his left ear were not significant nor outside normal measurement variability. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his right knee disorder and bilateral hearing loss to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, while the Veteran is competent to report symptoms of his bilateral hearing loss and right knee disorder, such as pain, he is not competent to provide testimony regarding the etiology of these disorders. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the Veteran’s right knee disorder and bilateral hearing loss are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his right knee disorder and bilateral hearing loss are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. Accordingly, because there is no evidence of an in-service incident or injury and the lack of any evidence demonstrating a relationship between the Veteran’s right knee disorder and active duty service, because he does not have right ear hearing loss as defined by VA, and because there is not sufficient evidence demonstrating a relationship between his left ear hearing loss and active duty service, service connection is not warranted. Based on the above, the Board concludes that the preponderance of the evidence is against the Veteran’s claims for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel