Citation Nr: 21065204 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-44 310 DATE: October 25, 2021 ORDER Service connection for chondromalacia of the patella of the right knee is granted. Entitlement to service connection for a left knee disability, however, including as secondary to the right knee disability, is denied. Entitlement to service connection for bilateral hearing loss also is denied. FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) confirm he had complaints of pain in his right knee during his military service from 1980 to 1984 and received a consequent diagnosis of chondromalacia of the patella of his right knee; since service, in 2004, he sustained an additional injury to his right knee involving a chronic tear of the posterior horn of the lateral meniscus with a displaced lateral meniscal fragment, and the resultant diagnosis was complex lateral meniscus tear, osseous intraarticular loose body, and mild degenerative arthritis. 2. It nonetheless is as likely as not that at least some of the Veteran's current symptoms and impairment referable to his right knee are the result of the chondromalacia patella diagnosis he received during his service, so not just owing to that additional injury and diagnosis since his service. 3. The most probative evidence of record conversely is against finding that the Veteran's left knee disability is directly related or attributable to his service or that his left knee disability was caused or is aggravated by his right knee disability; moreover, he sustained an intercurrent injury to his left knee since service, in 1987, and by all accounts his current left knee disability is attributable instead to that. 4. It is not shown that he has or has had sufficient hearing loss in either ear to be considered a ratable disability for VA compensation purposes at any time since filing this claim or proximate or contemporaneous to that, much less because of his military service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria are not met for entitlement to service connection for a right knee disability specifically, for chondromalacia of the patella of the right knee. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. But the criteria are not met for entitlement to service connection for a left knee disability, including secondary to the right knee disability. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria also are not met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 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 July 1980 to July 1984. This appeal to the Board of Veterans' Appeals (Board) is from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a "virtual" teleconference hearing in July 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) the presently claimed disability; (ii) incurrence or aggravation of a relevant disease or injury in service; (iii) and a causal relationship ("nexus") between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination of whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence. See Baldwin v. West, 13 Vet. App. 1 (1999). Certain chronic diseases may be presumed to be service connected if manifested to a compensable degree within a specified period of time following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); See also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Secondary service connection is warranted for a disability that was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability (for which secondary service connection is sought); (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Entitlement to service connection for a right knee disability The Veteran attributes his right knee disability to running in boots while in service and other wear and tear from the physical activity intrinsic to his training, duties, and responsibilities as a soldier. The evidence of record establishes the Veteran has current diagnoses of right chondromalacia patella and right knee complex lateral meniscus tear. See August 2017 VA examination. Consequently, resolution of the appeal of this claim turns, instead, on whether there also is the required attribution of either of these conditions, or both, to his military. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's STRs show several complaints of right knee pain. A May 1981 right knee arthrogram showed no evidence of tear or other abnormality. A January 1983 STR noted tenderness in his patella and limitation of extension. He resultantly was referred for physical therapy. On April 1984 service separation examination, his knees were normal. His military service ended a few months later, in July 1984. The Veteran's post-service private treatment records note additional reports of right knee pain but, instead, following an intervening ("intercurrent") softball injury much more recently in 2004. An April 2004 magnetic resonance imaging (MRI) revealed findings consistent with "a chronic tear of the posterior horn of the lateral meniscus with a displaced lateral meniscal fragment". The Veteran was scheduled for a VA examination of his right knee in September 2016 in response to this claim. The examiner opined it was less likely than not that the Veteran's current right knee disability was related to his service. The examiner observed the Veteran had two distinct periods of acute right knee conditions during service, diagnosed as chondromalacia patella, iliotibial band tightness and patellofemoral pain syndrome. However, a meniscus or cartilage injury was ruled out. The examiner indicated that, although a history of chondromalacia patella was noted on separation, the Veteran's right knee was normal on examination. The examiner also pointed out that there was no documented continuity related to the Veteran's right knee following his service. In August 2017 another VA opinion was obtained. This additional VA examiner opined that the Veteran's right knee disability is less likely than not due to his military service and more likely related to the intervening/interceding injury. The examiner explained there is no evidence of a chronic right knee condition during the Veteran's service. He noted the Veteran had a normal arthrogram with no evidence of meniscal or degenerative or ligament injury in 1981. The examiner further explained that the Veteran's right knee was normal on separation from service and there is no evidence of chronicity. As well, this examiner observed the Veteran had an intervening/interceding injury in 2004 and was diagnosed with right knee complex lateral meniscus tear, osseous intraarticular loose body, and mild degenerative arthritis. This examiner resultantly concluded that the Veteran's current right knee condition is related to that intervening/interceding injury rather than to his earlier symptoms and diagnosis in service. In support of his claim, the Veteran submitted a private opinion in October 2021. Based on review of the Veteran's STRs, this private examiner concluded the Veteran's right knee pain onset during his service (when considering there was no dysfunction of this knee upon his enlistment and his military medical records document right knee pain secondary to chondromalacia), so it is more likely than not his military duty was directly linked to his development of chondromalacia of his right knee. This private physician explained that, although no physical findings were documented on the Veteran's service separation examination (ETS), the examining physician at separation noted that chondromalacia was documented prior to separation and the symptoms were noted to "wax and wane". This commenting private physician therefore surmised, "it is possible that [the Veteran's] symptoms were minimal and escaped notice on physical exam and were not otherwise documented." With regards to the medical opinions obtained or otherwise submitted, as with all types of evidence, it ultimately is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion on whether to grant or deny service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Here, the VA examiners' opinions finding that the Veteran's right knee disability is not related or attributable to his service ultimately are no more probative than the private physician's opinion contrarily supporting this posited correlation ("nexus"). All the examiners, so both the private examiner concluding favorably and conversely the VA examiners concluding unfavorably, neglected to account for certain relevant occurrences or reconcile why they did not tend to undermine their respective opinions. More specifically, the private examiner did not reconcile or otherwise account for the additional "intercurrent" injury the Veteran has sustained to his right knee since his service, and the VA examiners essentially impermissibly equated continuity or chronicity of care or treatment with continuity of symptoms, and only the latter is required by 38 C.F.R. § 3.303(b). Continuity of symptoms, not instead treatment for them, is the essence of 38 C.F.R. § 3.303(b). Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Ultimately, there is no disputing the Veteran initially had pain in his right knee during his time in the military and consequently received a diagnosis of chondromalacia of the patella of his right knee which is often referred to as "overuse" syndrome, so consistent with the type of physical activity during his service that he cites as the source or cause of this condition. 38 U.S.C. § 1154(a) (requiring consideration of the circumstances, conditions, and hardships of a Veteran's service). Moreover, there was at least mention of those complaints and this resultant diagnosis during his military separation examination (ETS), even accepting that the objective clinical portion of that exit examination was unremarkable for any then current disability. But the private physician has provided reasonable explanation for that, citing the tendency of the Veteran's symptoms to "wax and wane" meaning sometimes to be more apparent or severe than at others. As for what occurred during the several intervening years following conclusion of the Veteran's service and the additional ("intercurrent") injury to his right knee in 2004, the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Here, the Veteran's testimony under oath during his July 2021 hearing before this Board was credible in establishing that he had continuing right knee pain after conclusion of his service, so even before sustaining the additional ("intercurrent") injury to this knee in 2004. And, while it cannot be said that all his current right knee disability or impairment is attributable to the diagnosis of chondromalacia of his patella during his service, it equally cannot be said that all of it necessarily is due to his additional (different) diagnosis since service, either, following that intervening injury. Thus, it is as likely as not that at least a portion of his current right knee disability is from the chondromalacia of his patella that initially was diagnosed during his service. Accordingly, by resolving this reasonable doubt in his favor, there is at least basis for granting service connection for the chondromalacia of his right patella, even if not additionally for the other disability affecting this knee. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. 2. Entitlement to service connection for a left knee disability, including as secondary to the right knee disability. The Veteran also attributes his current left knee disability to his service. He specifically reported that his left knee disability began during his service, at the same time as his right knee disability. Additionally, during his July 2021 hearing, he set forth an alternative theory of entitlement to service connection for his left knee disability that it was caused or is aggravated by his right knee disability. It is not in dispute that the Veteran has a left knee disability. See September 2016 VA examination. What remains to be established, however, to substantiate this claim, is whether his current left knee disability is the direct result of his military service or secondarily related to his service as mentioned, meaning caused or aggravated by his now service-connected right knee disability. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). And, crucially, it is in these other critical respects that the evidence is much less favorable to his claim. The Veteran's STRs are grossly unremarkable for complaints, findings, treatment, or diagnosis of a left knee disability. So, as an example, there was no diagnosis of chondromalacia of the patella of his left knee while in service, only as already discussed in relation to his right knee. Also, on service separation examination, his left knee was normal. His military service ended in July 1984. Consequently, service connection for a left knee disability on the premise that it incepted during his service and has persisted since is not warranted. There also is no indication of arthritis in this knee within a year of the Veteran's discharge from service, meaning by July 1985, to in turn warrant presuming it was incurred during his service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Rather, the earliest post-service clinical record pertaining to a left knee disability is an anterior cruciate ligament (ACL) tear resulting from 1987 post-service injury. Notably, the only competent, i.e., medical evidence of record addressing whether there is a correlation between the Veteran's current left knee disability and his service is the September 2016 and August 2017 VA examiners' opinions that are entirely against this claim. Both VA examiners concluded that his current left knee disability is less likely than not due to his service and, instead, more likely due to that intercurrent 1987 injury. Moreover, while in October 2021 the Veteran submitted a supporting medical opinion regarding his current right knee disability, he has not submitted any such supporting medical opinion or treatise evidence tending to support his claim of a relationship or correlation between his current left knee disability and his military service. The issue of whether his left knee disability is the result of his military service that ended many years (indeed decades) ago or onset during his service or within a year of his discharge is a medical question outside the scope of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Therefore, he is not competent to provide a probative opinion on this determinative issue of causation. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that the determination of whether medical versus lay evidence is needed to support a claim is fact specific (i.e., a case-by-case judgment), based on the specific type of condition being claimed, including in terms of whether it is simple or instead complex). See also 38 C.F.R. § 3.159 (a)(1) and (a)(2); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For these reasons and bases, the preponderance of the evidence is against this claim. There is no reasonable doubt to be resolved because the evidence for versus against this claim is not in relative balance (equipoise). Thus, service connection for a left knee disability is denied. 3. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral (left and right ear) hearing loss that onset during his service and has persisted ever since. He traces it to serving as a Russian linguist and interceptor and points out he did that and was exposed to hazardous levels of noise from wearing headphones. But most fundamental to this claim is first showing he has sufficient hearing loss to be considered a ratable disability for VA compensation purposes because only if determined he does is there then need to additionally determine whether his disability is related or attributable to the noise trauma he says occurred during his service. And, unfortunately, the Board concludes that he does not have a current bilateral hearing loss disability and has not had one at any time during the pendency of this claim or recent to the filing of this claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Because he has not shown he has this claimed disability, there necessarily cannot be any association of this for all intents and purposes nonexistent disability with his military service. A current disability means a disability shown by competent and credible evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory 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. 38 C.F.R. § 3.385. On September 2016 VA examination, puretone thresholds, in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 15 20 15 LEFT 25 20 10 15 15 The results of that examination do not show the Veteran has sufficient hearing loss in either ear to be considered a ratable disability for VA compensation purposes according to 38 C.F.R. § 3.385 since he also did not have speech recognition less than 94 percent. On July 2021 private audiometry, puretone thresholds, in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 10 LEFT 20 20 5 10 5 Speech recognition was 10 percent, although there was not confirmation that the Maryland CNC test was used, which § 3.385 specifically requires. The assessment was "normal hearing sensitivity". Indeed, the record does not show that at any time during the pendency of this claim the Veteran has had this required level of hearing impairment, much less because of his service. Further, there is no assertion by the Veteran, or medical records in the claims file, suggesting a worsening of hearing acuity since his examinations to the point that he would now have a ratable hearing loss disability according to 38 C.F.R. § 3.385. As a result, the Board must deny his claim for service connection for bilateral hearing loss. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). He is advised that a future finding of a ratable hearing loss disability in accordance with 38 C.F.R. § 3.385 may present a basis for readjudicating this claim. But, in the meantime, no further consideration of this claim is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.