Citation Nr: 21068929 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 16-31 586 DATE: November 16, 2021 ORDER The claim of service connection for right ear hearing loss is denied. The claim of service connection for bilateral knee disability is denied. REMANDED The claim of service connection for headaches is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's right ear hearing loss was incurred in service; sensorineural hearing loss in the right ear was not demonstrated within one year of service. 2. The preponderance of the evidence is against a finding that the Veteran's bilateral knee disability was incurred in service, or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1978 and from February 1978 to September 1980. The Veteran's second period of service was found to be dishonorable for VA purposes. This matter is on appeal from a March 2014 rating decision. The Veteran and his wife, J.W. testified before a Veterans Law Judge at an April 2019 Board hearing. A copy of the transcript has been obtained and associated with the claims file. In September 2019, the Board reopened but denied the Veteran's claims of service connection for headaches and a right ear hearing loss. The Veteran appealed the Board's denial to the United States Court of Appeals for Veteran Claims (Court). The Court issued an Order in October 2020, grating a Joint Motion for Remand (JMR) with regard to these issues. The issue of service connection for a bilateral knee disability was remanded by Board in September 2019 for further development. These appeals were previously remanded by the Board in April 2021 for further development. Such development was undertaken on the appeal for service connection for right hearing loss and a bilateral knee disability and the case is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). However, as set out below, additional development remains necessary on the Veteran's appeal for service connection for headaches. Id. Service Connection 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). Right Ear Hearing Loss The Veteran is currently seeking service connection for a right ear hearing loss. Hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). Based on his March 2015 Notice of Disagreement, the Veteran indicated that his right ear hearing loss had continued to worsen and he reported being issued a hearing aid. He indicated that during his service as a Boatswain Mate, he was continuously exposed to loud noise with minimal hearing protection. Based on an October 2010 QTC examination, the Veteran demonstrated mild sensorineural hearing loss in the right ear, which was sufficient to constitute a hearing loss disability pursuant to VA regulations. Upon evaluation, his puretone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 35 25 35 LEFT 25 30 20 25 20 However, the October 2010 audiologist found that the Veteran's right hear hearing loss disability was less likely than not to have been caused by his military noise exposure while serving in the United States Navy. He had a valid hearing test (not Whispered Voice) that was completed at the time of his separation, which did not show abnormal hearing. In support of the Veteran's claim, an August 2015 VA medical opinion found that the Veteran's hearing loss is related to his miliary service. However, the VA physician did not offer any rationale to support his conclusion. In February 2016, an additional VA examination was provided. The VA examiner opined that the Veteran's right ear hearing loss was less likely as not related to his noise exposure in service. However, the Board remanded this appeal for additional development in April 2021 as this opinion was found to be inadequate by the JMR. Subsequently, pursuant to the April 2021 Board remand, a new VA opinion was obtained the same month. Upon review of the evidence of record and the Veteran's lay statements, the VA audiologist determined it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA audiologist explained that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which was objective evidence of no permanent auditory damage on active duty from conceded noise exposure. It was noted that there was no reports of complaints or treatment for hearing decrease in service treatment records or at separation. The VA audiologist cited to a 2006 Institute of Medicine study which indicated that there was no studies on humans indicating delayed onset of hearing loss from noise exposure. The VA audiologist cited to another study that stated that "hearing losses in humans are multifactorial with contributions from, and potential interactions among numerous variables that can shape final outcomes. Any noise exposures through the Veteran's life, including traffic noise, smoke alarms, etc. would have to be considered in addition to any military noise exposure. Many factors contribute to age related hearing loss including genetic predisposition and medical conditions." Furthermore, the VA audiologist stated that although noise exposure was conceded and the relationship of noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss were not conceded based on military noise alone. It was acknowledged that the Veteran reported in 2010 and at the 2019 Board hearing that his hearing loss went back to just after active duty and he often needed people around him to repeat themselves. However, the VA audiologist stated that while the Veteran may have felt he was having difficulty hearing, there was no evidence that reflected that hearing loss was present at that time as hearing was shown by clinical testing to be within normal limits at separation. It was noted that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. Therefore, the VA audiologist determined that the evidence was against the nexus in the Veteran's case and it was less likely than not that hearing loss was related to his military noise exposure. In reviewing the record, the Board finds that service connection for hearing loss in the right ear is not warranted. The Board recognizes there is positive and negative nexus opinions within the record. However, the Court has held that in comparing positive and negative evidence, the Board may favor the opinion of one competent medical professional over that of another, as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). While the Veteran has submitted a positive medical opinion, the August 2015 VA opinion is afforded no probative weight as it provided no supporting rationale to justify its conclusion. It merely found that the Veteran's right ear hearing loss is related to his service, without addressing the Veteran's normal hearing in service or the delayed symptoms over the course of the years. The Board notes that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). In contrast, the April 2021 VA audiologist's opinion was based on a thorough review of the claims file. The opinion offered is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases. Wray v. Brown, 7 Vet. App. 488, at 492 (1995). Thus, the Board affords the April 2021 VA opinion more probative weight than the August 2015 VA opinion. In this case, the Board finds that all available, pertinent medical information was presented to, and considered by, the VA audiologist in April 2021. The VA audiologist conducted a thorough review of the medical evidence of record and the Veteran's lay statements regarding his symptomatology, as well as the evidence within the claims file, following which he determined there was insufficient evidence to support an etiological relationship between the Veteran's hearing loss and his military service. In support of this, the VA audiologist noted several medical treatises which does not support delayed onset of hearing loss from noise exposure. It is also noted that the other noise exposures throughout the Veteran's life would have to be considered in addition to any military noise exposure. Given the review of the file, consideration of the Veteran's lay statements, and the provided rationale, the Board finds this opinion to be adequate for rating purposes and affords it great weight. Although the Veteran is conceded to have been exposed to loud noise during service, he is not shown to have complained of hearing loss during service, and hearing loss is not shown during service. Despite the Veteran's assertion that he has had an ongoing hearing loss symptomatology since his service, as the VA audiologist indicated, this is not supported by the objective, clinical evidence of record. There is no evidence of sensorineural hearing loss within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges the Veteran's lay assertions that his right ear hearing loss is attributable to his service in the United States Navy. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Veteran is not competent (meaning medically trained) to opine on the etiology of his hearing loss, or even to determine the presence of hearing loss for VA purposes (as such requires the administration of clinical testing). Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the etiology of the current hearing loss is a complex medical question that is not within the competence of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Accordingly, the evidence for the Veteran's claim is outweighed by the countervailing evidence. As the weight of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the appeal is denied. Bilateral Knee Disability The Veteran is seeking service connection for a bilateral knee disability. In his March 2015 Notice of Disagreement, the Veteran asserted that his bilateral knee condition is secondary to his lumbar spine disability, in addition to his duties as a boatswain mate in the United States Navy. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Additionally, the Veteran has raised the issue that obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Specifically, in March 2021 the Veteran has asserted his bilateral knee disability has been aggravated by the obesity resulting from his service-connected lumbar spine. A VA General Counsel opinion states that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. Turning to the evidence of record, the Veteran's service treatment records are silent for any treatment, complaints or diagnosis relating to his knees. The Veteran's separation examination found no clinical abnormalities in the lower extremities. A June 2005, October 2006, March 2007 VA treatment record reported normal knee reflexes and pulses. An October 2009 private treatment record from Dr. S.B.C indicated that the Veteran was seen for left knee pain and swelling. The Veteran denied any recent injury. He was diagnosed with a left knee degenerative joint disease. Further VA treatment records show that the Veteran has continued to experience knee pain and ultimately developed osteoarthrosis in his knees. An August 2015 letter from the Veteran's VA physician, Dr. V.L., stated that it was more likely than not that the Veteran's bilateral knee condition was incurred or aggravated during his active military service. No further rationale was provided. Pursuant to the September 2019 Board remand, a VA etiological opinion was obtained in September 2020. Upon review of the evidence of record, the September 2020 VA examiner determined it was less likely than not that the Veteran's bilateral knee osteoarthritis began during or was otherwise caused by his military service. The VA examiner explained there was no mention of knee trauma or other chronic conditions incurred while on active duty. The VA examiner noted that the support letter from Dr. V.L. "failed to take into account any evidence based research to support his decision and also fails to consider the increased risk of degenerative changes to [the] knees and spine due to objective evidence of obesity or the [V]eteran's use of tobacco since he was 18 years old." The VA examiner stated the smoking was the leading risk factor in the development of knee joint osteoarthritis and cited to medical articles from the National Center for Biotechnology Information. The VA examiner also stated that the Veteran obesity was a factor leading to his bilateral knee disability. Regarding the question of whether it was at least as likely as not that the Veteran's bilateral knee disability was caused or aggravated by his service-connected back disability, the September 2020 VA examiner stated there was "no medical nexus in research or objective documentation showing evidence of an event that could logically be a proximate medical nexus between the [V]eteran's back [disability] and his bilateral knee osteoarthritis." Again, tobacco use and obesity were noted as risk factors that contributed to knee degenerative joint disease and any opinion linking the Veteran's back disability and his bilateral knee disability was speculative "without objective, factual basis." In April 2021, however, the Board found it was unclear from the record whether the Veteran's service-connected lumbar spine disability led to his obesity and remanded this appeal for additional development. A May 2021 VA opinion from a VA examiner noted that obesity is most commonly caused by a combination of excessive food intake and lack of physical activity "which is by choice." The VA examiner stated that the Veteran's pain reliever medication for his lumbar spine disability and bilateral knees, Tramadol, did not cause weight gain. Therefore, it was less likely than not that the Veteran's service-connected lumbar spine disability, as well as the prescribed medication for its treatment, caused the Veteran's obesity. An addendum to the May 2021 VA opinion was obtained in July 2021 where it stated that it was not at least as likely as not that the Veteran's service-connected disabilities, namely the service-connected lumbar spine disability, or treatment for such, caused obesity. The Veteran had an increased weight prior to the 2013 service connection date, as early as 2004. The VA examiner stated that the evidence of record supported a "yo-yo" type of weight loss and gain over several years and did not support that the weight gain was caused by the lumbar spine or its treatment. Therefore, a plausible nexus was not established. The VA examiner acknowledged that the Veteran's weight gain over the course of the years was a causative factor towards his knee disability as it was a known fact that weight gain and obesity caused strain on the joints, often leading to degenerative changes. It was less likely than not that the Veteran's knee disability would have occurred if not for the obesity by a service-connected disability. The evidence of record reflects the Veteran was a government contractor and his bilateral knee arthritis pre-dated the date of service connection for the back disability. After a review of the evidence of record, the Board finds that the Veteran's claim must be denied. Here, the entirety of the medical evidence weighs against the conclusion that the Veteran's bilateral knee disabilities either began during or were otherwise caused by his active service. In addition, the record does not contain evidence that any diagnosis of a bilateral knee disability was found within one year of separation from the service. In fact, the record does not contain evidence of a treatment for a bilateral knee condition until approximately 2009; twenty nine years following his separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. As such, the Board does not find that the evidence of record shows continuous symptomatology. The Board recognizes there is a positive nexus opinion from Dr. V.L. However, the Board finds that it lacks probative value, however, since this opinion provides no rationale or explanation for his findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinion that contains only data and conclusions not entitled to any weight). Thus, the evidence fails to establish service connection for the Veteran's bilateral knee disability on a direct basis. On the secondary service connection theory of entitlement, the Board concludes that service connection is also not warranted. The September 2020 VA examiner provided a negative nexus opinion in regard to secondary service connection. Specifically, the VA examiner determined there no medical research or objective documentation supporting an etiological relationship between the Veteran's service-connected lumbar spine disability and his bilateral knee disability. Rather, the VA examiner determined it was the Veteran's tobacco use and obesity which were the two risk factors that contributed to his bilateral knee disability. Here, while the VA examiners acknowledged that while obesity was a factor in causing or aggravating the Veteran's bilateral knee disabilities, the Veteran's service-connected lumbar spine, and its treatment, did not cause his obesity and that it was less likely than not that the Veteran's knee disability would have occurred if not for the obesity by a service-connected disability. In this respect, the Board finds that the VA opinions to be highly probative. The VA opinions were based on a thorough review of the claims file, is consistent with other evidence of record, and cited to medical literature. They also provided adequate rationales for these opinions. Accordingly, these VA opinions are entitled to great probative weight. Id. at 295, 302-04 (holding that it is factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Therefore, service connection on a secondary basis must also be denied. The Board acknowledges the Veteran's lay contentions. He is considered competent to report the observable manifestations of his claimed disabilities. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). His assertions that he experiences symptoms are also credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether the Veteran has a current diagnosis of a claimed disorder and the date of onset of such disorder, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, his opinion therefore cannot provide the requisite nexus. The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran's bilateral knee disability. REASONS FOR REMAND As stated in the April 2021 remand, the Board found that the March 2016 VA examiner did not adequately address the Veteran's lay statements of continuity of symptomatology since separation from service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, the Board remanded the claim for a new VA opinion. In the Board remand instructions, it was directed that in providing the requested opinion, the VA examiner should specifically address the statements by the Veteran and his spouse to the effect that the Veteran's headaches began in 1975 after receiving a cut over the eye. This was not completed in the subsequent May 2021 VA opinion. Therefore, as the development outlined in the April 2021 remand was not completed this appeal must regrettably be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion to determine to determine the etiology of the Veteran's headache condition. The VA examiner should opine as to whether it is at least as likely as not (50 percent or better probability) that a headache disability either onset during the Veteran's military service or is otherwise related to his service. Why or why not? In providing the requested opinion, the VA examiner is asked to specifically address the statements by the Veteran and his spouse to the effect that the Veteran's headaches began in 1975 after receiving a cut over the eye. Any opinion expressed should be accompanied by a complete rationale. In so doing the examiner should review the joint motion for remand (Court Documents General received 10/16/20) for an explanation as to why the earlier medical opinions about the Veteran's headaches had been found to be inadequate. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.