Citation Nr: 21001166 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-50 650 DATE: January 7, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for left knee osteoarthritis is remanded. Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to December 1975. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript is of record. The Board previously remanded these matters in September 2019. Also remanded at the time was the issue of entitlement to service connection for a right hand condition. In an April 2020 rating decision, the RO granted service connection for tendonitis of the right palm mid flexor tendon. As this award represents a full grant of the benefits sought with respect to this issue, the matter is resolved and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The Veteran seeks service connection for bilateral hearing loss based on military noise exposure. A review of the Veteran’s DD-214 shows his military occupational specialty was as a truck driver. In light of the duties associated with the Veteran’s military occupational specialty, his exposure to hazardous noise during service is acknowledged in this case. Nevertheless, the Board finds that, notwithstanding the Veteran’s in-service exposure to hazardous noise, there is no evidence of a current hearing loss disability to sustain his claim for service connection for bilateral hearing loss. Specifically, it is not shown that the Veteran has a diagnosis for hearing loss that meets the VA definition for impaired hearing under 38 C.F.R. § 3.385. In this regard, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment or diagnoses related to bilateral hearing loss. On February 2015 VA audiological examination, the Veteran’s puretone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Right 5 5 10 20 25 Left 5 5 10 15 25 The Veteran’s speech recognition scores were 98 percent bilaterally. On January 2020 VA audiological examination, the Veteran’s puretone thresholds were as follows: Hertz 500 1000 2000 3000 4000 Right 10 15 15 10 35 Left 5 5 5 10 30 The Veteran’s speech recognition scores were 100 percent bilaterally. Based on the foregoing, it is not shown that following separation from service, the Veteran’s February 2015 and January 2020 VA audiological examinations have shown a bilateral hearing loss disability. There is no evidence of record that establishes auditory thresholds and/or speech recognition scores that meet the criteria for a hearing loss disability under VA regulations. See 38 C.F.R. § 3.385. The Board also acknowledges the Veteran’s contentions that he has impaired hearing. See June 2019 hearing transcript. Although the Veteran is competent to report symptoms of hearing loss, as a layperson, he is not competent to diagnose hearing loss for VA purposes. This requires medical expertise, clinical testing, and knowledge 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). The Veteran has not been shown to have such training or expertise; therefore, he is not competent to provide a diagnosis in this case. In light of the foregoing, the Board finds that the Veteran does not meet the VA criteria for establishing a hearing loss disability under 38 C.F.R. § 3.385. As such, the preponderance of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability. As it is well-established that the existence of a current disability is the cornerstone of any claim for VA disability compensation, the Veteran’s claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for left knee osteoarthritis and a right knee condition. The Veteran seeks service connection for his left knee osteoarthritis and a right knee condition, which he reports were injured during service while unloading and loading cargo as a truck driver. See June 2019 Hearing transcript. The Veteran was afforded a VA examination in December 2019. The VA examiner noted that the Veteran claimed that he injured his knees while unloading and loading cargo as a truck driver during service. However, the VA examiner further noted that the Veteran’s STRs were silent for bilateral knee injuries, symptoms, diagnosis, or treatment, and concluded that a nexus was not established between the Veteran’s current knee disabilities and military service. The Board finds that the Veteran’s reports of knee pain during and since service were not adequately addressed in the December 2019 medical opinion. Relying on the absence of evidence in medical records, without regard for lay statements, to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). As such, remand is warranted to obtain a VA medical opinion to address the Veteran’s lay statements regarding bilateral knee pain during and since service. Furthermore, since the December 2019 VA examination, the Veteran has contended that his left and right knee conditions were caused by the June 1975 right ankle injury documented in his STRs. See June 2020 correspondence. The Veteran has also submitted research regarding the impact of ankle injuries on knee conditions, as well as a June 2020 private nexus opinion from the Veteran’s treating podiatrist regarding the right ankle injury sustained during military service and the Veteran’s current right ankle condition. Accordingly, the Board finds that a medical opinion regarding whether any relationship exists between the in-service right ankle injury and the left and right knee conditions is warranted. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician. After reviewing the claims folder, the examiner is asked to opine as to: a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee osteoarthritis and right knee condition were caused by or related to his active duty service. In doing so, the examiner is instructed to specifically address the Veteran’s lay statements regarding bilateral knee pain during and since service. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s in-service ankle injury caused or resulted in his current left and right knee conditions. In doing so, the examiner is instructed to address the June 2020 nexus opinion regarding the etiology of the Veteran’s right ankle condition and the research submitted by the Veteran regarding the relationship between ankle and knee conditions. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.