Citation Nr: 19123787 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-64 792 DATE: March 29, 2019 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right ear hearing loss disability is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran does not have a left knee disability that had its onset in service, arthritis of the left knee was not manifest within one year of active service, and any current left knee disability is not otherwise related to service. 2. A right ear hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is not a current right ear hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Air Force from March 1998 to February 1999, and on active duty from May 2009 to September 2009, and from October 25, 2009, to October 27, 2009, with additional short periods of active duty (special tours, active duty other) or active duty for training in the Air Force Reserves, to include service in Southwest Asia from February to March 1999 and from January to March 2001. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(21) and (24) (2012); 38 C.F.R. § 3.6(a) (2018). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131 (2012). ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Certain evidentiary presumptions – such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service – are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309 (2018). The presumption of soundness under 38 U.S.C. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C. § 1112 and the presumption of aggravation under 38 U.S.C. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id; see also Acciola v. Peake, 22 Vet. App. 320 (2008). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “Veteran” by virtue of ACDUTRA service alone. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. To establish a right to compensation for a present disability, a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a left knee disability The Veteran contends that he has a current left knee disability due to his service. Specifically, during his November 2018 Board hearing, the Veteran described an incident during a period of service (the precise nature of that service is unclear) where, “I hit my knee on one of the what we call air stairs, which is required to get to the airplane.” In addition, he felt that the wear and tear of “climbing at least two to three stories worth of stairs several, several times an hour in order to do our jobs” also contributed to his current left knee problems. In addition, he was required to constantly be kneeling on the ground in order to access and repair aircraft. The Veteran’s service treatment records include no complaints, treatment, or diagnoses of left knee problems or disability. In November 2001, the Veteran described his health as excellent and denied a history of trick or locked knee or arthritis. A contemporaneous examination of the lower extremities was normal. In August 2004 and June 2007, the Veteran specifically denied any limitation of motion of any joint, including the knees; knee problems; locking of the knee; or giving way of the knee. The Veteran conceded during his November 2018 Board hearing that he had not sought treatment for or been diagnosed with a left knee disability during any period of service, Reserve or otherwise. The Veteran also has acknowledged that he has not been formally diagnosed with a left knee disability by any medical personnel and there is no VA or private medical evidence of record with respect to the left knee. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Even were the Board to presume that the Veteran had a current left knee disability, the preponderance of the evidence weighs against finding that such a disability began during service or is otherwise related to an in-service injury, event, or disease. The sole evidence in this case are the Veteran’s lay contentions regarding a current left knee disability that is related to his service. The Board notes that it is unclear from the record whether the Veteran is alleging that the injury from hitting his left knee on the air stairs occurred during his active service or some period of ACDUTRA or INACDUTRA. In any case, as such an incident would constitute an injury, service connection for such an incident could be granted regardless of the classification of service. The Board, however, does not find sufficient evidence to grant entitlement to service connection based on this incident. The sole evidence of a left knee disability due to hitting his knee on the air stairs are the Veteran’s general contentions. While the Veteran can report contemporaneous symptoms of pain, swelling, or other physically observable signs, given the complexity of diagnosing a left knee disability from that single incident is beyond the competency of the Veteran given his lack of medical education, training, or experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds such a conclusion particularly problematic in that there is no evidence of a continuity of left knee symptoms from the time of the incident involving hitting his knee on the air stairs to the present. The Veteran has not argued that he experienced ongoing left knee symptoms from that incident, but that his current left knee problems are due to a combination of that incident and the general wear and tear on his knee from the duties of service. Additionally, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As to the wear and tear from climbing the air stairs, kneeling on the ground to work on aircraft, and other similar job-related activities, as there is no injury entitlement to service connection could be based only on incidents occurring during active service or periods of ACDUTRA. The Veteran does not contend that he has a left knee disability that began during a period of active service, but rather that it occurred at some amorphous point after 2002, presumably during some period of Reserve service. As noted above, however, when a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. In this case, the Board finds that there is not. The Veteran’s current contentions are that he began to experience left knee symptoms at some point in 2002 or thereafter, but there is no specific report that the symptoms began during a discrete period of service (Reserve or otherwise). During his November 2018 Board hearing, the Veteran did state that, “my left knee started hurting during my periods of service with the military.” The Board does not consider the foregoing to constitute a report of a continuity of symptoms from service, as the Veteran’s allusions to pain starting during “periods” of service suggests that the pain was intermittent in nature and that there was not a consistent starting point during a specific period of service. Similarly, the foregoing does not demonstrate a continuity of symptoms from service, rather than pain or other symptoms that were intermittent in nature from 2002 or thereabouts. The foregoing is insufficient to suggest that a disease or injury was incurred or aggravated during a period of service. Such a conclusion is supported by the Veteran’s explicit denial of knee problems in August 2004 and September 2007. Had the Veteran been experiencing ongoing left knee problems from 2002, the Board finds it reasonable to expect that he would have reported such problems at one or both of those times. Thus, the contemporaneous evidence speaks against a continuity of left knee problems from 2002 or otherwise to knee problems due to service. Again the Board finds that an examination is unnecessary in light of the Veteran’s explicit denials of knee problems in August 2004 and September 2007 that do not support his current contentions of left knee problems due to service starting in 2002 and given that a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. 2. Entitlement to service connection for a right ear hearing loss disability The Veteran contends that he has a right ear hearing loss disability due to noise exposure, primarily from aircraft, while in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to the above-noted legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a right ear hearing loss disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A September 2017 VA examination report included audiometric testing results that failed to show a right ear hearing loss disability for VA purposes. In support of his claim, the Veteran submitted a November 2018 private audiology examination report; however, this report also failed to show a right ear hearing loss disability for VA purposes. The Board has considered the article submitted by the Veteran from “audiologyonline” entitled, 20Q: Cochlear Synaptopathy – Interrupting Communication from Ear to Brain” from August 2017. The article discussed “hidden hearing loss” and how an individual could have hearing acuity that was tested within the normal range, but still experience difficulty hearing in certain environments or other circumstances. The authors describe a physiology different from sensorineural hearing loss, the disorder diagnosed in the left ear. The Board has considered the foregoing article and the Veteran’s contentions as analogous to the Court’s holding in Saunders v. Wilkie, 886 F.3d 1356 (Vet. App. 2018) that pain alone results in functional impairment. In this case, however, the Veteran already is service-connected for a left ear hearing loss disability and there is no indication that he has attributed any functional impairment specifically to right ear hearing problems. Moreover, the authors suggest that cochlear synaptopathy affects speech recognition in a noise background, but the Veteran’s word recognition testing showed 100 percent in both ears in a September 2017 VA examination. As noted by the Court in Hensley, an individual can have abnormal hearing without it constituting a hearing loss disability for VA purposes and the VA requirements for what constitutes a hearing loss disability based on auditory thresholds are clear. In light of all the foregoing, the Board concludes that the Veteran’s reported hearing problems are insufficient to establish functional loss of right ear hearing such that service connection for a right ear hearing loss disability is warranted. While the Veteran believes he has a current diagnosis of a right ear hearing loss disability, he is not competent to provide a diagnosis in this case. VA regulations have specifically defined what constitutes a hearing loss disability for VA purposes based on specific diagnostic testing results and the evidence does not support that the Veteran meets that criteria. Consequently, the Board gives more probative weight to the medical evidence of record.   REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. During his November 2018 Board hearing, the Veteran described tinnitus several times per week with associated dizziness. He described the tinnitus as “extremely loud.” In support of his claim, the Veteran submitted an article from “audiologyonline” entitled, 20Q: Cochlear Synaptopathy – Interrupting Communication from Ear to Brain” from August 2017. The article discussed “hidden hearing loss” and how, “Recent findings from animal studies of noise-induced and age-related hearing loss suggest that cochlear synapse loss is a likely contributor to difficulties understanding speech in noise, and may be an instigating factor in the generation of tinnitus and hyperacusis – even when hearing thresholds are normal.” The Veteran was afforded a VA examination for his tinnitus claim in September 2017 and the examining audiologist opined that the tinnitus was less likely than not caused by or the result of military noise exposure, based on the Veteran’s reports that the Veteran was unsure whether his tinnitus began in 2015 or sometime before, which suggested post-service onset. The foregoing opinion, however, did not address whether the tinnitus was caused or aggravated by the Veteran’s now service-connected left ear hearing loss disability. In addition, an opinion is necessary to address whether the Veteran had cochlear synapse loss due to in-service acoustic trauma that caused his current tinnitus. Given the above evidence regarding an association between hearing loss and tinnitus (even when hearing acuity is tested as normal) and the Veteran meeting the criteria for a left ear hearing loss disability for VA purposes, the Board concludes that an addendum opinion is necessary addressing the possible link between the Veteran’s left ear hearing loss disability and his tinnitus. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tinnitus is at least as likely as not (a) incurred in or is otherwise related to service (and specifically whether the Veteran had cochlear synapse loss due to in-service acoustic trauma that caused his current tinnitus) or was (b) caused or (c) aggravated by his service-connected left ear hearing loss disability. In reaching that determination, the examiner is requested to consider (and reconcile to the extent necessary) the article from “audiologyonline” entitled, 20Q: Cochlear Synaptopathy – Interrupting Communication from Ear to Brain” from August 2017 discussing cochlear synapse loss and tinnitus. 2. After the above is complete and undertaking any additional development deemed necessary, readjudicate the claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel