Citation Nr: 1822167	
Decision Date: 04/12/18    Archive Date: 04/25/18

DOCKET NO.  14-28 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disability; and if so, whether the reopened claim should be granted.  

2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left knee disability; and if so, whether the reopened claim should be granted.  

3. Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Virginia Department of Veteran Services 




ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel


INTRODUCTION

The Veteran had active military service from September 1975 to April 1989 and from July 2006 to December 2007.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  Jurisdiction was subsequently returned to the RO in Roanoke, Virginia.         

The issues of entitlement to service connection for right and left knee disabilities are REMANDED to the AOJ.


FINDINGS OF FACT

1. The Veteran does not have bilateral hearing loss disability for VA purposes.  

2. A February 2010 rating decision denied entitlement to service connection for a right knee injury and left knee arthritis.

3. The evidence received since the February 2010 rating decision is new and raises a reasonable possibility of substantiating the claims for entitlement to service connection for right and left knee disabilities.  





CONCLUSIONS OF LAW

1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right knee disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left knee disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claims to Reopen

The Veteran was originally denied entitlement to service connection for left knee arthritis and a right knee injury in a February 2010 rating decision based on a finding that left knee arthritis was not related to service, and was not presumed to be related to service; and the finding that there was no diagnosis of a right knee disability.  The Veteran did not appeal that decision.  

The evidence that has been received since the February 2010 rating decision includes a December 2012 VA examination report showing the Veteran to have a diagnosis of a right knee disability, and lay statements in which it was indicated that the Veteran first experienced knee pain in service and has continued to experience such symptoms since that time.  

The Board finds that the above-mentioned evidence is new and material.  In this regard, it is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claims.  To this limited extent only, the appeals are granted.

Entitlement to Service Connection for Bilateral Hearing Loss Disability

The Veteran seeks entitlement to service connection for bilateral hearing loss that he asserts is etiologically related to in-service exposure to hazardous noise levels.  

The Board notes that the Veteran has been granted entitlement to service connection for tinnitus based on acoustic trauma sustained in active service.  Therefore, the Board finds that the Veteran did in fact sustain acoustic trauma while in active service.

A review of the service treatment records (STRs) does not show that the Veteran had hearing loss for VA purposes at any time during his active service.  See 38 C.F.R. § 3.385 (2017).  

In December 2012, the Veteran was afforded a VA audiology evaluation.  At that time, the Veteran reported in-service noise exposure.  Speech recognition was measured at 98 percent in the right ear and 100 percent in the left ear.  Audiogram results at that time were as follows:

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
5
15
10
20
25
Left Ear
5
10
10
25
30

The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 6000 hertz or higher and provided a positive nexus opinion.  However, the Board notes that the Veteran was not shown to have bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385 (2017).

Additionally, the Board notes that while the Veteran is competent to report symptoms of decreased hearing acuity, he is not competent to diagnose himself with hearing loss for VA purposes.  A diagnosis of hearing loss for VA purposes requires medical expertise, clinical testing, and knowledge that are outside the realm of common knowledge of a layperson.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Veteran is not competent to provide a diagnosis in this case.

For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Here, the Board notes that there are specific requirements for what is considered hearing loss for VA compensation purposes, and a review of the record fails to show that the Veteran has bilateral hearing loss disability for VA compensation purposes.  In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  

While the Board is sympathetic to the Veteran's arguments and acknowledges that he sustained acoustic trauma while in active service and has been diagnosed with hearing loss related to such by a VA examiner, the Board lacks the discretion to award benefits on an equitable basis.  Instead, the Board is bound to observe the limits on its authority set forth by VA statutes and regulations.  Accordingly, the Board finds that the preponderance of the evidence is against the claim and that entitlement to service connection for bilateral hearing loss disability is not warranted.  38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   


ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.  

New and material evidence having been received, reopening of the claim of entitlement to service connection for a right knee disability is granted.

New and material evidence having been received, reopening of the claim of entitlement to service connection for a left knee disability is granted.
REMAND

The Board finds that additional development is required before the remaining claims on appeal are decided.

The Board finds that the December 2009 VA opinion with regard to the Veteran's left knee arthritis is inadequate to decide the claim.  In this regard, the examiner noted that no examination was conducted and that left knee arthritis was diagnosed prior to the Veteran's second period of active service in July 2006, and that no aggravation was shown.  The examiner did not explain why the Veteran's left knee disability had not been aggravated during his second period of active service.  Moreover, the examiner did not address whether the Veteran's left knee disability was related to the Veteran's first period of active service, from September 1975 to April 1989.  

With regard to the Veteran's right knee disability, the Board finds that the December 2012 VA medical opinion is inadequate to decide the claim.  In this regard, the examiner opined that it was less likely than not that the Veteran's right knee disability was related to service.  In his rationale, the examiner noted that there was no record of chronicity of a right knee disability while on active duty, and that the Veteran had one episode of right knee pain in 1985, but then no further treatment until 2012.  The Board finds that the rationale is inadequate as the examiner cannot rely solely on the absence of treatment as a basis for a negative medical opinion.  

As the medical opinions of record are inadequate, they cannot serve as the basis of a denial of entitlement to service connection.  Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his right and left knee disabilities.  

Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. 

Accordingly, the case is REMANDED for the following action:

1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file.  

2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his right and left knee disabilities.  The claims file must be made available to, and reviewed by the examiner.  Any indicated studies should be performed.  

Based on the examination results and a review of the record, the examiner should provide the following opinions:

a) Does the Veteran have a left knee disability that clearly and unmistakably existed prior to his active service (either period)?  If so, was any such pre-existing left knee disability clearly and unmistakably NOT aggravated by active service?   

The Board noted that the Veteran's lay statements alone are not a sufficient basis to support a finding that a left knee disability clearly and unmistakably existed prior to active service.  

b) With regard to any left knee disability NOT found to clearly and unmistakably exist prior to the Veteran's active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present left knee disability had its onset during the Veteran's active service, or is otherwise etiologically related to such service.  

c) With regard to any currently present right knee disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present left knee disability had its onset during the Veteran's active service, or is otherwise etiologically related to such service.

The rationale for all opinions expressed must be provided.

3. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted.  

4. Then, readjudicate the issues on appeal.  If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or 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).




______________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs