Citation Nr: 21071763 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-50 894 DATE: December 1, 2021 ORDER 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for a left knee disability is denied. 3. Entitlement to service connection for a left hip disability, to include as secondary to a left knee disability, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have (or during the pendency of this claim to have had) a hearing loss disability of either ear. 2. The Veteran's left knee disability was not manifested in service and arthritis of the left knee was not manifested to a compensable degree within a year following his discharge from active duty; continuity of left knee arthritis following service is not shown; and the left knee disability is not otherwise shown to be etiologically related to his service, to include as due to a left knee injury therein. 3. A left hip disability was not manifested during the Veteran's service; degenerative arthritis of the left hip was first diagnosed many years after service; and his current left hip disability is not shown to be etiologically related to his service or a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. Service connection for a left knee disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. Service connection for a left hip disability is not warranted; the claim of service connection for a left hip disability as secondary to a left knee disability lacks legal merit. 38 U.S.C. §§ 1112, 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1994 to August 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2014 Department of Veterans Affairs (VA) rating decision. In December 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2020 and May 2021, these matters and the matter of service connection for a skin disability were remanded for additional development. An August 2021 rating decision awarded the Veteran service connection for pseudofolliculitis barbae and facial scarring (and assigned a rating and effective date), resolving his appeal in that matter. At the outset, the Board finds there has been substantial compliance with its February 2020 and May 2021 remand directives pertaining to the matters remaining on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The existence of a current disability is the cornerstone of a claim for VA compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1) a disability for which service connection is sought; (2) a disability that is already service connected; and (3) that the already service connected disability caused or aggravated the disability for which service connection is sought. Certain chronic diseases (to include arthritis) may be presumed to be service-connected if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology since service. 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). 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. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 1. Entitlement to service connection for bilateral hearing loss is denied. For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was field artillery scout observer. It is not in dispute that in his MOS he was exposed to excessive levels of noise during his service. What remains necessary to substantiate this claim is competent evidence that he now has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and that it is etiologically related to his service/exposure to noise therein. In May 2013, the Veteran submitted a claim of service connection for "hearing loss". On March 2014 VA audiological examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 0 5 15 5 5 Left 5 5 0 10 15 Speech audiometry revealed speech recognition ability of 100 percent in each ear. Puretone threshold test results were deemed valid for rating purposes and the use of speech discrimination score was appropriate for the Veteran. The examiner noted the Maryland CNC test was not paused at any time as pauses were not necessary. A January 2019 VA treatment record notes complaints about right ear pressure and decreased hearing acuity. Physical examination showed right ear tympanic membrane was bulging with fluid level and minimal erythema in the ear canal. Otitis media was assessed. At the December 2019 hearing, the Veteran alleged his hearing acuity had worsened since his 2014 VA examination. On March 2020 VA audiological examination audiometry, puretone thresholds, in decibels, were: Hertz 500 1000 2000 3000 4000 Right 25 20 20 20 15 Left 15 20 25 20 25 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 74 percent in the left. While puretone testing was found valid for rating purposes, the examiner opined the use of the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. The examiner explained that the speech discrimination scores are poorer than expected given the puretone threshold findings and are beyond 95% confidence intervals for expected scores relative to puretone findings. The examiner opined it was unclear whether these results suggest speech discrimination difficulty a rising higher in the auditory pathway than can be tested with available equipment or whether this suggests some component of non-organic hearing loss, although efforts were made to reduce non-organic responses (re-instruction). Due to a lack of objective evidence of permanent auditory damage following separation from service, the examiner opined that it is less likely than not that the hearing loss is related to military noise exposure. In a March 2021 statement, the Veteran's representative stated that he has "hidden hearing loss" and submitted treatise evidence in support of the claim (excerpt of articles discussing "hidden hearing loss" where an individual is shown to have difficulty hearing but otherwise has been able to achieve normal or near-normal hearing under standard tests and that more sensitive testing is required to detect the disability than the standard audiogram). On May 2021 VA audiological examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 20 15 20 15 15 Left 15 15 10 15 25 Speech audiometry revealed speech recognition ability of 94 percent in each ear. The examiner found the puretone test results valid for rating purposes and the use of speech discrimination was appropriate for this Veteran. The examiner opined that it did not appear that "hidden hearing loss" is relevant with speech discrimination scores as he achieved 100 percent bilaterally on the March 2014 VA examination and 94 percent bilaterally at the May 2021 VA examination. The examiner noted that hidden hearing loss refers to cochlear synaptopathy, which the examiner noted may also be important in the generation of tinnitus. The examiner noted that the clinic was not available to test cochlear synaptopathy. The examiner observed the March 2020 VA examination demonstration of speech discrimination scores lower than puretone thresholds that started the discussion of hidden hearing loss; the Veteran denied recurrent tinnitus on the March 2020 VA examination; and, on May 2021 VA examination he stated that tinnitus started in service. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether the Veteran has the disability for which service connection is sought, i.e., a hearing loss disability in either (or both) ear(s). Because a hearing loss disability is defined by regulation, to satisfy the threshold requirement the Veteran must show that during the pendency of the instant claim he was found (by audiometry in accordance with 38 C.F.R. § 4.85) to have a hearing impairment that meets that regulatory definition. While March 2020 VA examination found speech recognition testing below 94 percent, that finding was found to be invalid for rating purposes based on inconsistencies between the puretone threshold scores and the speech discrimination scores (they are beyond the 95 percent confidence intervals for the expected scores). Additionally, upon re-testing, the May 2021 VA audiologist found the speech discrimination scores of 94 percent in each ear appropriate for the Veteran, and it does not meet hearing loss disability threshold (as defined in 38 C.F.R. § 3.385). The only audiometry of record adequate for rating purposes is that on March 2014 and May 2021 VA examinations, which did not find a hearing loss disability in either ear. Both of those audiologists found puretone testing valid for rating purposes and the use of speech discrimination appropriate for this Veteran. Although the Veteran is competent to describe his perception of difficulty hearing, he is a layperson; and because under governing regulation a hearing loss disability must be shown by specified testing by a state-licensed audiologist, is not competent establish solely by his own opinion that he has a hearing loss disability. While the Veteran submitted treatise attesting to "hidden hearing loss," the May 2021 VA examiner explained association between hidden hearing loss, cochlear synaptopathy, and the development of tinnitus, another organic disease of the nervous system. The Veteran has not filed a claim of service connection for tinnitus and that matter is not before the Board. The evidence of record does not show that the Veteran has been found to have a hearing loss disability in either ear at any time during the pendency of the instant claim. 38 U.S.C. §§ 1110, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); 38 C.F.R. § 3.303(a), (d). As a hearing loss disability is not shown, he has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 233 (1992). 2. Entitlement to service connection for a left knee disability is denied. The Veteran's STRs note he was seen for complaints of left knee pain. An April 1995 clinical record notes complaints of left knee pain for 2 months; left knee patellofemoral syndrome was assessed. An August 1995 clinical record notes left knee pain for the past 6 months and morning stiffness; patellofemoral syndrome vs. old fracture of the patella was assessed. Diagnostic studies of the left knee was normal, finding a well maintained joint space and no fractures or osseous abnormalities. On May 1998 service separation examination, his lower extremities were normal on clinical examination. In a contemporaneous report of medical history, he endorsed having arthritis in his left hand and wrist and denied having a "trick" or locked knee or any other knee complaints. A July 2005 VA treatment record notes the Veteran was in a motor vehicle accident in July 2004, and has been experiencing pain in his lower back, entire left leg, and cervical spine since the accident. A November 2013 VA treatment record notes the Veteran's complaint of pain on the top of his left knee cap. He reported he fell on his knee in service and has had pain off-and-on since then. X-rays of the knee were interpreted as unremarkable. Chronic knee pain, to rule out patellofemoral syndrome, was assessed. In a letter to the Veteran explaining the findings, his provider (Dr. S.P.) stated that his knee x-ray did not show any signs of arthritis in the knee joint, and that the condition is likely a patellofemoral (knee cap and tendon) problem that they discussed. On August 2014 VA knee examination, the Veteran reported he fell in service and has had knee problems since. A left knee strain was diagnosed. Arthritis was not found on diagnostic testing. The examiner opined that it was less likely than not related to service, stating that the left knee patellofemoral syndrome diagnosis in service appears to have resolved uneventfully, without any sequela over time. The examiner noted that there was no evidence of ongoing treatment, interventions, or profiles. An October 2014 VA treatment record notes complaints of left knee pain; the treatment-provider opined that this was probably patellofemoral syndrome and/or tendinitis. A January 2016 VA treatment record notes complaints of knee pain for the past week; diagnostic studies found evidence of mild degenerative changes in the left knee. VA treatment records continued to show complaints of left knee pain. See October 2016, October 2017, May 2018, and May 2019 VA treatment records. At the December 2019 hearing, the Veteran testified that he fell in service, injured his left knee on a rock, and has experienced left knee pain since the injury in service. He related that his VA treating physician (Dr. S.P.) indicated that his current left knee disability is due to remote trauma, like that in service. On March 2020 VA examination, degenerative arthritis of the left knee was diagnosed. The Veteran reported he fell on a hike in service and hit his knee on a rock, and indicated that he has continued to have pain. The examiner opined the Veteran's left knee disability is less likely than not related to his service. The examiner noted that patellofemoral pain syndrome was diagnosed in 1995, and opined the condition was acute, noting the Veteran did not report a tricked or locked knee on service separation examination and there was no objective evidence of an ongoing left knee condition after 1995 until 2013. In a June 2021 VA medical advisory opinion, a consulting provider opined the Veteran's left knee condition is less likely than not related to service. The provider found the Veteran's statements regarding symptomatology to be credible, but opined that the Veteran is not qualified to ascribe those symptoms to a diagnosis or etiology. She noted there was no documented continuity of care during the 15-year interim (to 2013, when clinical records first documented reports of left knee pain) and that a new injury or disease process could not be excluded as the current etiology of the Veteran's left knee condition. The examiner noted that the Veteran's postservice employment included as a warehouse worker, postal service carrier, and inventory clerk manager. The examiner could not determine a specific alternative etiology based on there being insufficient medical records on which to base such determination. The examiner observed that the post-service occupations all involved extended periods of weightbearing, stair-climbing, or other use of the knee in those 15 years. It is not in dispute that the Veteran has a left knee disability, to include arthritis (first diagnosed in 2016, over 15 years following his separation from service). The record does not show (and the Veteran does not allege) that his current left knee arthritis was manifested in service or that the left knee arthritis was manifested in the first year following his separation from service. While he was seen for various left knee complaints during service, his lower extremities were normal on the 1998 service separation examination and he did not endorse experiencing knee trouble. Likewise, continuity of a left knee arthritis is not shown. While the June 2021 examiner found the Veteran's reports of knee pain since service credible, the examiner explained that the Veteran is not competent to associate his reported symptoms with a specific underlying diagnosis or alleged possible etiology. Accordingly, service connection for a chronic left knee disability on the basis that such disability became manifest in service and persisted, on a chronic disease presumptive basis (under 38 U.S.C. § 1112), or based on continuity under 38 C.F.R. § 3.303 (b), is not warranted. Whether, without evidence of chronicity in service or continuity thereafter, a current chronic left knee disability is related to remote service/an injury therein is a medical question, beyond the realm of common knowledge, and incapable of resolution by lay observation. It requires require medical expertise. See Jandreau, 492 F.3d at 1377. The preponderance of the competent (medical) evidence is against a finding that the Veteran's current left knee disability is etiologically related to his active service and acute injury therein. The Board finds the opinion by the June 2021 examiner to be the most probative evidence in the matter, and persuasive. The VA examiner is a medical professional, and is competent to offer her opinion, and the opinion reflects a familiarity with the Veteran's entire record, and includes rationale that cites to supporting factual data. The provider noted that after the 1995 clinical record there were no other documented complaints of left knee pain until 2013, to include on 1998 service separation examination. The provider further explained that the Veteran worked in occupations that would have required extended weightbearing, stair-climbing, and other use of the knee during the 15 years following separation from service (activities that were inconsistent with a long-standing chronic left knee disability). The Board has considered the Veteran's assertions that his VA treatment provider told him that his left knee arthritis is related to service. However, a review of the claims file found no notation that a provider has related the Veteran's current left knee disability is related to a remote fall in service. The Veteran's assertion that a medical provider indicated there may be such possibility (but did not document the opinion in the record) does not rise to the level of competent medical evidence in this matter. Notably, VA treatment records also document a remote postservice traumatic injury (of the entire-so including the knee-left leg) before arthritis was diagnosed. His own statements to the effect that his current left knee disability is related to a remote fall in service have no probative value. He has not presented any medical opinion or medical treatise evidence in support of his allegation. The record does not include any competent evidence that the Veteran's left knee disability might be etiologically related to his service. Accordingly, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55. 3. Entitlement to service connection for a left hip disability is denied. The Veteran's STRs are silent for complaints, treatment, or diagnoses related to his hips. A November 2013 VA treatment record notes he has started noticing problems with his hips (pain in certain positions and with walking and feeling like his gait has changed because of the pain). Diagnostic testing of his hip found mild degenerative changes. VA treatment records note complaints of hip pain. See October 2014 and June 2016 VA treatment records. At the December 2019 hearing, the Veteran alleged that his left hip disability was secondary to his left knee. On March 2020 VA examination, left hip degenerative arthritis was diagnosed. The Veteran reported he has to compensate for his knee, causing him to limp which causes left hip pain. The examiner opined it was less likely than not related to his left knee condition, noting he developed degenerative arthritis in his hip prior to developing degenerative arthritis in his knee. The examiner stated that degenerative arthritis is caused by the wearing down of joints over time and things that contribute to degenerative arthritis include age, joint injury, overuse, obesity, weak muscles, genetics, and gender. In a June 2021 VA medical advisory opinion, the consulting provider opined that the left hip disability was less likely than not related to service or a service-connected disability, noting that his STRs are silent for complaints or treatment of a left hip disability during service and the left knee condition was found to be unrelated to service. The record does not show (and the Veteran does not allege) that his left hip disability was manifested in, or is directly related to, his service. Left hip arthritis was first diagnosed in 2013, over 15 years following his separation from service. Accordingly, service connection for a left hip disability on the basis that it became manifest in service and persisted or on a chronic disease presumption basis under 38 U.S.C. § 1112 is not warranted. Further, the Board finds the opinions by the March 2020 and June 2021 to be cumulatively probative evidence in this matter, and persuasive. The examiners expressed familiarity with the Veteran's record/history, and included rationale that cites to accurate factual data, including the absence of complaints in service and the development of hip arthritis prior to left knee arthritis. Moreover, the March 2020 examiner further explained that the known risk factors for developing degenerative arthritis include age, joint injury, overuse, obesity, weak muscles, genetics, and gender. The VA providers are medical professionals, and are competent to offer the opinions, and the opinions reflects a familiarity with the Veteran's entire record and includes rationale that cites to both supporting factual data and medical principles. The Veteran has not submitted competent (medical opinion or treatise) evidence to the contrary. The Veteran's primary theory of entitlement is essentially one of secondary service connection; he asserts that his left hip disability is due to his left knee disability. As a left knee disability is not service connected (the appeal in that matter is denied above), the secondary service connection theory of entitlement lacks legal merit. 38 C.F.R. § 3.310 (a). See Sabonis v. Brown, 6 Vet. App. 430 (1994). Considering the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current left hip disability is etiologically related to his service or a service-connected disability. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.