Citation Nr: 20021964 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-37 134 DATE: March 30, 2020 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for cold weather injury residuals is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record does not reflect that the Veteran’s currently diagnosed right knee disability is related to an in-service right fibula fracture, that he was diagnosed with arthritis within a year after separation from service, or that he experienced a continuity of arthritis symptomology since service. 2. The Veteran’s current level of hearing loss in the left ear does not meet the criteria to constitute a disability for VA purposes, and there is no competent evidence of record establishing that he was diagnosed with left ear hearing loss within a year after separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1959 to September 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In February 2020, the Veteran appeared and testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. SERVICE CONNECTION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system or arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system, and therefore a presumptive disability. The Board notes that in Fountain v. McDonald, 27 Vet. App. 258 (2015), the United States Court of Appeals for Veterans Claims determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Right Knee Disability The Veteran maintains that entitlement to service connection for a right knee disability is warranted. Specifically, during his February 2020 Board hearing, the Veteran testified that he broke his right fibula bone while playing baseball in service. He indicated that he was given a cast and that the fracture did not heal properly. The medical evidence of record reflects a current diagnosis of right knee degenerative joint disease; thus, the current disability element for this claim has been established. The Veteran’s service treatment records confirm that he fractured his right fibula in May or June 1962 while playing baseball. Treatment notes from May 1962 reflect that the Veteran had a simple fracture of the right upper fibula, which was undisplaced. There was no nerve or artery involvement. It was noted that a closed reduction of the fracture without traction was conducted. The Veteran’s August 1962 separation examination found his lower extremities to be normal. It was noted that the Veteran fractured his right leg, however it was also noted that he had a “[g]ood recovery” and that there were no further complaints. The Veteran noted on his August 1962 separation Report of Medical History that he broke his leg while playing baseball in service. However, he specifically noted that he was not experiencing arthritis, or any bone, joint, or other deformity. On April 2014 VA knee and lower leg conditions examination, the Veteran was provided a diagnosis of right knee degenerative joint disease. It was noted that the Veteran fractured his right fibula while playing baseball in service and that he was placed in a cast for six weeks. There were no complications. The Veteran reported experiencing right knee pain over the past ten years and that he was going to physical therapy. He indicated that he experienced pain with walking and when using the stairs. The VA examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran’s right knee degenerative joint disease was related to service. The VA examiner reasoned that the right knee degenerative joint disease was due to the nature aging process and not to a fibula fracture. Also of record are the Veteran’s private treatment records, which reflect the Veteran being treated for right knee pain beginning in February 2011. Physical therapy notes reflect that he was diagnosed with osteoarthritis of the knee. There is no indication in these records that the Veteran’s disability is in any way related to service. In light of the foregoing, the Board finds that entitlement to service connection for a right knee disability is not warranted. Although the evidence of record reflects a currently diagnosed right knee disability, and that the Veteran sustained an in-service right leg injury, the preponderance of the evidence of record is against a finding that the current knee disability is related to the injury in service. Initially, while the Veteran was noted to have fractured his right fibula in service, it was noted at the time to have been treated and that the Veteran had a “[g]ood recovery” with no residual issues The Veteran himself, while noting the injury, did not note any residual symptoms, to include any knee pain, in his separation Report of Medical History. Further, the Board finds persuasive the April 2014 VA medical opinion, which was based upon a review of the record, to include the Veteran’s lay statements, and contained a rationale for the negative nexus opinion provided. Specifically, the April 2014 VA examiner indicated that it was the natural aging process, rather than the in-service healed fibular fracture, that was the cause of the Veteran’s diagnosed right knee degenerative joint disease. Further, the Board acknowledges that the Veteran has been diagnosed with right knee degenerative joint disease and osteoarthritis, and that arthritis is considered a chronic disability under 38 C.F.R. § 3.309(a). However, statements from the Veteran himself indicate that he was experiencing right knee pain for only about ten years, which indicates on onset of more than forty years after separation from service. Further, there is no other evidence of record, and the Veteran does not allege, that he was diagnosed with arthritis within a year after separation from service. Thus, as the evidence of record does not reflect that the Veteran was diagnosed with arthritis within in a year after separation of service, or experienced a continuity of arthritis symptomology since service, the Board finds that entitlement to the presumption of service connection for a chronic disability is not warranted. Finally, the Board also notes that lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran has not established that he has specialized training rendering him competent to provide an opinion as to the etiology of his right knee disability. Further, the Board finds that the other evidence of record, to include medical treatment records and the Veteran’s own lay statements from service, and the April 2014 VA medical opinion, weigh against his claim. Accordingly, as the preponderance of the evidence of record does not reflect that the Veteran’s currently diagnosed right knee disability is related to service, the Board finds that entitlement to service connection is not warranted. Thus, the Veteran’s claim is denied. Left Ear Hearing Loss The Veteran claims that he is entitled to service connection for bilateral hearing loss. The Board notes that the Veteran’s right ear hearing loss will be discussed in the REMAND section below. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In April 2014, the Veteran was afforded a VA audiological examination. Puretone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 40 55 LEFT 20 10 15 25 35 The average puretone thresholds were 30 decibels in the right ear and 21 decibels in the left ear. Speech discrimination scores were 98 percent bilaterally. Based on the foregoing, the Board finds that entitlement to service connection for left ear hearing loss is not warranted, as the Veteran has not been found to meet the threshold requirements for hearing loss for VA purposes for the left ear under 38 C.F.R. § 3.385. Further, service connection is not warranted for left ear hearing loss on a presumptive basis as there is no competent evidence of record documenting the presence of hearing loss for VA purposes within one year of discharge. Accordingly, entitlement to service connection for left ear hearing loss is denied. REASONS FOR REMAND For the reasons discussed below, the Board finds that a remand is warranted for the remaining issues on appeal. Right Ear Hearing Loss & Tinnitus The Veteran claims entitlement to service connection for hearing loss and tinnitus. Specifically, during his February 2020 Board hearing, the Veteran indicated that he was exposed to excessive noise while working on the flight line in service. He indicated that he noticed worsened hearing during service, and that he first began experiencing ringing in his ears during service. As discussed above, the Veteran was afforded a VA hearing loss and tinnitus examination in April 2014. The findings detailed above reflect that he has hearing loss for VA purposes in the right ear. 38 C.F.R. § 3.385. Further, the Veteran reported recurrent tinnitus. The VA examiner provided a negative nexus opinion for the Veteran’s hearing loss, and reasoned that the Veteran separated from service with normal hearing and did not report any hearing loss in service. Regarding the tinnitus, the VA examiner indicated that since hearing loss was not due to in-service noise exposure, the tinnitus was also not related to in-service noise exposure. The Board notes that the VA examiner did not take the Veteran’s lay statements regarding onset of hearing loss and tinnitus symptoms during service into consideration in rendering an opinion. Thus, the Board finds that a remand is warranted in order to obtain a new VA examination for the Veteran’s right ear hearing loss and tinnitus disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Cold Weather Injury Residuals The Veteran claims entitlement to service connection for cold weather injury residuals in his extremities, specifically his hands. The Board notes that the Veteran has not been afforded a VA examination for this disability. During the February 2020 Board hearing, the Veteran indicated that during service, while stationed in New York and Korea, he was forced to work on planes outside in the cold weather. Due to the nature of his work, he was unable to wear gloves to protect his hands from the cold. He indicated that he developed frostbite and a loss of sensation in his hands. He further indicated that he continued to experience frostbite residuals in his hands after service to the present. Specifically, he reported tingling in his hands, especially during the cold weather. In light of the Veteran’s lay statements, and confirmation in his service records that he was stationed at Osan Air Force Base in Korea, as well as Plattsburgh Air Force Base in New York, the Board finds that a remand to afford the Veteran with a VA examination and to obtain a medical opinion is warranted. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records related to the issues on appeal. Complete any necessary further development. 2. Thereafter, forward the Veteran’s electronic claims file to an appropriate examiner for an examination regarding his reported cold weather injury residuals disability, and for an addendum opinion as to the nature and etiology of his currently diagnosed right ear hearing loss and tinnitus. It is left to the examiner’s discretion whether to reexamine the Veteran for his right ear hearing loss and tinnitus disabilities. Following a thorough review of the claims file and examination, if warranted, the examiner should provide opinions, with complete rationale, on the following: (a.) Regarding the Veteran’s currently diagnosed right ear hearing loss, opine as to whether it is at least as likely as not (a 50 percent probability or greater) that this disability was caused by the Veteran’s reported in-service noise exposure. The VA examiner should consider the Veteran’s report of worsened hearing during service. (b.) Regarding the Veteran’s currently diagnosed tinnitus, opine as to whether it is at least as likely as not (a 50 percent probability or greater) that this disability was caused by the Veteran’s reported in-service noise exposure. The VA examiner should consider the Veteran’s report that he first began experiencing ringing in his ears during service. (c.) Regarding the Veteran’s reported cold weather injury residuals, identify any current diagnosis related to the Veteran’s reported tingling in his hands. Opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosed disability was caused by the Veteran’s reported in-service cold weather injury. 3. After completing the development listed in item 1, schedule the Veteran for a VA examination to determine the nature and likely etiology of his cold weather injuries of the upper extremities. The Veteran’s claims file must be made available to the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any identified cold whether injury residuals had causal origins in service or is otherwise related to the Veteran’s active duty service. The examiner should accept the history of in-service frostbite as consistent with the circumstances of his service, and the examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran’s recollection is affirmatively contradicted by the medical evidence. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After undertaking any additional development deemed appropriate, and giving the Veteran a full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. DeChiara, 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.