Citation Nr: 20021286 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-09 490 DATE: March 25, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral leg disability, to include bilateral knee arthritis, is denied. REMANDED Entitlement to service connection for a concussion, to include residuals of traumatic brain injury (TBI), is remanded. FINDINGS OF FACT 1. There is no evidence of record which establishes that the Veteran has a current diagnosis of bilateral hearing loss in accordance with VA standards. 2. The Veteran’s bilateral knee and leg disability did not manifest in service and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral knee and leg disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1973 to February 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board hearing. The transcript of the hearing is of record. By way of background, during the appeal process, the Veteran was granted service connection for bilateral tinnitus in a September 2017 rating decision and as such the Veteran’s claim for entitlement to service connection for tinnitus is no longer on appeal. Service Connection Generally, to establish service connection 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral hearing loss and arthritis, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply to the claim for hearing loss. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. 1. Entitlement to service connection for bilateral hearing loss is denied. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. The Veteran contends that his bilateral hearing loss manifested as a result of his service. Specifically, the Veteran stated that he was exposed to hazardous noise from M16 rifles, hand grenades, claymore mines, M60 machine guns, and helicopters, with little to no hearing protection. See September 2019 Hearing Transcript. Despite the Veteran’s contentions, based on a review of the record, the Board finds that the Veteran does not meet the standards for service connection for bilateral hearing loss as the preponderance of the evidence supports a finding that there is no current disability that meets the criteria of 38 C.F.R. § 3.385. Regarding the first element of direct service connection (a current disability) for hearing loss, the medical evidence does not reflect a diagnosis of bilateral hearing loss in accordance to VA standards. The Veteran was afforded a VA examination in November 2015 with an addendum opinion in August 2017. In the November 2015 examination, the Veteran did not exhibit 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; 26 decibels or greater in at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; or speech recognition score of less than 94 percent of the bilateral ear. Specifically, the Veteran exhibited 25 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 30 decibels at 4000 Hertz with a speech discrimination score of 96 percent of the right ear. As for the left ear, the Veteran exhibited 20 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 30 decibels at 3000 Hertz, and 35 decibels at 4000 Hertz with a speech discrimination score of 94 percent. Accordingly, the Veteran does not have a diagnosable bilateral hearing loss in accordance to VA standards. As such, the examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner explained that there is no significant decrease in thresholds from the Veteran’s entrance examination to his separation examination. In August 2017, a different examiner opined that it is less likely as not that the Veteran’s bilateral hearing loss is caused by military noise exposure as the Veteran had normal hearing at separation examination with no significant threshold shift in his enlistment examination to separation examination. In support of her opinion, the examiner referenced the Institute of Medicine (IOM) wherein IOM determined that there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime long after the cessation of that noise exposure. The Board finds that the Veteran does not have bilateral hearing loss in accordance to VA standards. Accordingly, the Board finds that the first element has not been met. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, however, as noted above, the evidence does not establish that the Veteran currently experiences a diagnosable bilateral hearing loss in accordance to VA standards. In the absence of a current disability, the analysis ends, and the claim for service connection for bilateral hearing loss cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Entitlement to service connection for bilateral leg disability, to include bilateral knee arthritis, is denied. At the outset, the Board finds the Veteran has a current diagnosis of degenerative arthritis of the bilateral knees. See September 2015 Medical Treatment Record – Non-Government Facility. As such, the first element of service connection has been met. Regarding the second element of service connection, in the September 2019 hearing, the Veteran testified that he had landed hard on several occasions from military parachute jumps and skydiving. A review of the service treatment records shows that the Veteran had normal lower extremities with no complaints of swollen or painful joints, arthritis, or trick or locked knee in the October 1972 induction examination. In March 1973, the Veteran was diagnosed with bilateral stress fracture, but an x-ray scan of the bilateral knees and femur showed normal findings. See September 2015 STR – Medical. In September 1973, the Veteran continued to complain of asymptomatic pain in the bilateral knee. However, a September and October 1973 x-ray scan of the knees revealed negative findings. Additionally, in the January 1975 separation examination the Veteran was noted to have normal lower extremities. A review of the post-service medical records shows that the Veteran was afforded a VA examination in November 2015. The examiner diagnosed the Veteran with left knee strain, meniscal tear of the left knee, and mild diffuse tricompartmental arthritis of the bilateral knees. The examiner opined that it is less likely than not that the Veteran’s bilateral knee disability incurred in or was caused by the claimed in-service injury, event, or illness. The examiner explained that although the service treatment records show that there was an abnormality of the femurs, a follow-up x-ray scan six months later showed normal bilateral knees and bilateral tibia/fibular with no evidence of stress fractures. Further, the Veteran has no current evidence of stress fractures. As such, the examiner determined that the Veteran’s bilateral knee disability is related to wear and tear of the knee typical for the Veteran’s age. The Board gives great probative value to the November 2015 examiner’s opinion as it is consistent with, and well supported by, the records. For instance, despite the in-service complaint of bilateral knee pain and diagnosis of bilateral knee stress fracture, a September and October 1973 x-ray scan of the knees revealed negative findings. Further, the Veteran was noted to have normal lower extremities in his January 1975 separation examination. As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s bilateral knee and leg disability manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). Based on the record, the Veteran was noted to have normal lower extremities in the January 1975 separation examination and was not diagnosed with a bilateral leg or knee disability until 2015, about 40 years after service. See September 2015 Medical Treatment Record – Non-Government Facility. As such, there is no evidence of bilateral knee and leg disability within the first post-service year. Accordingly, service connection for bilateral knee and leg disability based on the presumption in favor of chronic disease is not warranted in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. In sum, the criteria for service connection for bilateral knee and leg disability have not been met. Accordingly, service connection for bilateral knee and leg disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to service connection for a concussion, to include residuals of TBI, is remanded. In the September 2019 hearing, the Veteran stated that while in service he was involved in a motor vehicle accident wherein he was T-boned by another vehicle. The Veteran attested that he hit his head on a rolled-up window and as a result of this accident he has migraine headaches and blurry vision. The Veteran stated that there may be additional helpful medical records from Executive Health – Mayo Clinic in Rochester, Minnesota. The Veteran also tried to retrieve records from St. Mary’s Hospital in Mason City, Iowa, but was told that they were “long gone.” As the service treatment records show that the Veteran was involved in a motor vehicle accident in June 1973 and the Veteran attested that he has migraine headaches and blurry vision, which his medical records at Executive Health may reflect, the Board finds that a remand is warranted to obtain records from Executive Health. The matter is REMANDED for the following action: (Continued on the next page)   Obtain all outstanding VA and private medical records and associate them with the claims file. Specifically, obtain identified records from Executive Health - Mayo Clinic from 2013 forward; and St. Mary’s Hospital in Mason City, Iowa. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.