Citation Nr: 1807979 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-26 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral knee disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from July 1983 to October 1985. He also had additional Reserve service to include several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been added to the record. The Board notes there are additional issues on appeal that the Veteran has perfected, but have not yet been certified to the Board. As such, they will be the subject of a later Board decision, as necessary. See 38 C.F.R. §§ 19.36, 20.1304(a). The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability for VA compensation purposes. 2. The Veteran does not have a current left knee disability. 3. The Veteran's current right knee disability, diagnosed as mild osteoarthrosis with joint effusion and acute right knee gout versus pseudo gout, was not manifest during his military service or within the first post service year, and was not related to his military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for establishing service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (c), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard, under 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6(c)(3). Service connection may be granted for injury or disease incurred while on ACDUTRA. 38 U.S.C.A. § 101(24). INACDUTRA is defined as duty (other than full-time duty) under 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23). Service connection may be granted for injuries incurred while on INACDUTRA but not for disease. 38 U.S.C.A. § 101(24). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, to include arthritis and sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods for service connection do not apply to ACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Acciola v. Peake, 22 Vet. App. 320, 323-324 (2008). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). A. Bilateral Hearing Loss In February 2009, the Veteran filed his present claim seeking service connection for bilateral hearing loss. He attributes this condition to his in-service exposure to hazardous noise levels. The circumstances of the Veteran's active military service are consistent with noise exposure. For VA compensation purposes, impaired hearing will be considered to be a disability when the auditory threshold level 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. In October 2011, the Veteran underwent a private examination for hearing loss. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 25 LEFT 10 5 10 15 20 This evaluation did not include obtaining speech recognition scores using the Maryland CNC Test as required by 38 C.F.R. § 3.385. In March 2012, the Veteran underwent a VA examination for hearing loss. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 25 25 LEFT 20 15 25 25 35 Speech recognition ability was 94 percent in the right ear and 96 percent in the left ear. In June 2015, the Veteran underwent another VA examination for hearing loss. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 25 25 LEFT 15 15 15 25 25 Speech recognition ability was 96 percent in each ear. The findings in the October 2011, March 2012 and June 2015 audiological examinations do not reflect hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. While the Veteran himself believes that he suffers from a current hearing loss disability that is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the extent of hearing loss and the etiology thereof require medical testing and expertise to determine. Accordingly, his opinion as to the diagnosis and extent of hearing loss, and the etiology of such, is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the audiological testing evidence to be of greater probative value than the Veteran's lay assertions. In support of his claim, the Veteran submitted a November 2017 private medical report. The report, however, failed to include any audiometric findings which could be used to establish a current hearing loss under 38 C.F.R. 3.385. In the absence of audiological findings showing a hearing loss disability pursuant to 38 C.F.R. § 3.385 currently exists, the criteria for establishing service connection for bilateral hearing has not been established, and service connection for bilateral hearing loss is not warranted. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. Accordingly, the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for bilateral hearing loss. As such, there is no doubt to be resolved, and the claim for service connection for bilateral hearing loss is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Bilateral Knee Disability The Veteran filed his present claim seeking service connection for a bilateral knee disability in February 2009. At his June 2011 RO hearing, the Veteran testified that he first noticed pain in his knees during basic training. He attributed the knee pain to his having to frequently lift heavy objects and having to get into awkward physical positions while working on aircraft in the performance of his in-service duties as an aircraft mechanic. A review of the Veteran's claims file reveals no current diagnosis of a left knee disability. In the absence of medical evidence that a left knee disability currently exists, the criteria for establishing service connection for left knee disability has not been established, and service connection for a left knee disability is not warranted. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A review of his post service treatment records reveals that the Veteran currently has a right knee disability, diagnosed as mild osteoarthrosis with joint effusion and acute right knee gout versus pseudo gout. Accordingly, the remaining portion of the Board's decision herein shall focus on whether this condition is related to his military service. The Veteran served on active duty in the Air Force from July 1983 to October 1985. He subsequently served in the Air National Guard and later the Air Force Reserves until May 2007, which included multiple periods of ACDUTRA and INACDUTRA. A review of his service treatment records revealed no complaints, treatment or diagnosis of any knee disability during his military service. There was no line of duty report showing an injury to either knee during his reserve duty. On medical history reports, completed in June 1984, August 1985, September 1985, November 1988, September 1992, December 1997, and September 2001, the Veteran denied having any history of swollen or painful joints, and denied having any history of a trick or locked knee. Physical examinations conducted at these times reported that his lower extremities were normal. The first post service treatment of a right knee disability was not shown until February 2016, over eight years after his separation from reserve service. At that time, the Veteran reported having a two week history of right knee pain and swelling. He denied any history of trauma or injury. There is no medical evidence of record indicating that a link exists between the Veteran's current right knee disability and his military service. Despite the Veteran's contentions, he has not been shown to have specialized training sufficient to render an opinion requiring medical expertise, such as the etiology of knee disabilities. Accordingly, his statements and testimony regarding causation are not competent evidence to establish service connection. Jandreau, 492 F.3d at 1372. Moreover, while the Veteran reported having ongoing bilateral knee pain since his basic training, this is contradicted by multiple medical histories completed by him during his military service. His contentions herein also contradict the two week history of right knee pain he provided in February 2016. As such, the Board finds no probative value to the Veteran's contentions of ongoing bilateral knee pain since his military service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (The credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). Consequently, there is no probative evidence linking any current knee disability to the Veteran's military service. Absent such a nexus, service connection cannot be established. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board notes that a medical opinion was not obtained on this claim. However, in the absence of competent and credible evidence of an in-service event or competent and credible evidence suggesting a link between a knee disability and service, an opinion is not required. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral knee disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral knee disability is denied. REMAND The Veteran is seeking service connection for a low back disability. In an April 2015 statement, the Veteran claimed to have injured his lower back while working on aircraft in 1984. He also indicated that he injured his back a second time in 1995. However, on Reports of Medical History dated June 4, 1984, August 29, 1985, September 7, 1985, November 5, 1988, September 12, 1992 and December 6, 1997 he marked "No" to recurrent back pain. On Report of Medical History dated September 15, 2001 he marked "No" to recurrent back pain or any back injury. However, he also claims that his lower back disability is the result of his having to frequently lift heavy objects and having to get into awkward physical positions while working on aircraft in the performance of his in-service duties as an aircraft mechanic. At his December 2017 Board hearing, the Veteran testified that he has visited emergency rooms 10 to 15 times for his low back since his discharge from military service. He also testified that his private physician, Dr. Spencer, has informed him that his current low back disability is related to his military service. These records are not found in the Veteran's claims file. Under the circumstances of this case, the AOJ must, with the required assistance of the Veteran, attempt to obtain these records. Additionally, the Board finds that a VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who provided him for his low back disability since his discharge from military service, including all of his reported emergency room visits and all treatment records and opinions from Dr. Spencer. After securing any necessary releases, the AOJ must request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 2. After completion of the foregoing, schedule the Veteran for a VA spine examination to determine if his current low back disability is related to his active military service from July 1983 to October 1985, or to a period of ACDUTRA or INACDUTRA. The Board notes that the Veteran's military personnel records reflect no active duty or inactive duty training points after October 2004. The claims file must be reviewed by the examiner in conjunction with the examination. Based on the clinical examination and review of the claims file, the examiner must provide an opinion as to whether the Veteran's current low back disability, including lumbosacral spondylosis, small disc protrusions at L1-L2 and L4-L5, and lumbago is at least as likely as not (50 percent probability or greater) etiologically related to his active military service or to a period of ACDUTRA or INACDUTRA. The examiner should explain the reasons for the conclusions reached, to include the Veteran's contentions that his lower back disability is the result of his having to frequently lift heavy objects and having to get into awkward physical positions while working on aircraft in the performance of his in-service duties as an aircraft mechanic. 3. After completing the above actions, and any other development deemed necessary, the issue remaining on appeal must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs