Citation Nr: 21074318 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-61 005 DATE: December 14, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran was awarded the Parachutist Insignia during active service; thus, his lay assertions regarding in-service right knee and left ankle injuries are deemed credible because they are consistent with the facts and circumstances of his service. 2. The record evidence shows that the Veteran's post-service complaints of right knee pain likely are related to a post-service motorcycle accident which occurred in 2014. 3. The record evidence shows that the Veteran does not experience any current disability due to his claimed right knee and left ankle disability which is attributable to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from November 1999 to August 2003. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appointed his attorney by filing a completed VA Form 21-22 at the RO in September 2018. A virtual Board hearing was held in August 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board acknowledges that the Veteran submitted a lay statement from a fellow former service member in support of his appeal in October 2021. In this statement, the former service member described the Veteran's alleged in-service complaints of and self-treatment for right knee injuries. The Board also acknowledges that the Veteran did not waive RO review of this newly submitted evidence in the first instance. Because the Board finds that the Veteran's lay statements concerning in-service right knee injuries to be credible (as discussed elsewhere), and because this evidence is duplicative of the Veteran's statements, the Board may proceed to adjudicate this appeal without remanding this claim for RO review of this evidence in the first instance. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Because the Veteran currently lives within the jurisdiction of the RO in St. Petersburg, Florida, that facility has jurisdiction in this appeal. Service Connection Entitlement to service connection for a right knee disability and for a left ankle disability The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for a right knee disability and for a left ankle disability. The Veteran essentially contends that he incurred disabilities of the right knee and left ankle during service in a U.S. Marine Corps reconnaissance battalion and experienced continuous post-service disability. The record evidence does not support finding an etiological link between either of these claimed disabilities and active service. It shows instead that, although the Veteran likely injured his right knee and left ankle during service, he does not experience any current disability in his right knee or left ankle which could be attributed to service. With respect to the assertion of in-service incurrence of right knee and left ankle injuries, the Board notes that the Veteran's DD Form 214 shows that he was awarded the Parachutist Insignia during active service. The Board finds it reasonable to conclude that the Veteran likely injured his right knee and left ankle as a result of his in-service duties as a parachutist and member of a Marine Corps reconnaissance battalion. The October 2021 lay statement (discussed in the Introduction above) also supports finding that the Veteran injured his right knee and left ankle during active service. It describes the rigors of his Marine Corps service and how he self-medicated for these injuries. Thus, his lay assertions regarding in-service right knee and left ankle injuries are deemed credible because they are consistent with the facts and circumstances of his service. The Veteran's available service treatment records show that, at a pre-enlistment physical examination in August 1998, prior to his entry on to active service, he denied all relevant pre-service medical history and clinical evaluation was within normal limits. In September 2001, he denied any chronic arthritis/knee or joint pain. On periodic physical examination in July 2002, clinical evaluation again was within normal limits and he denied all relevant in-service medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The post-service evidence also does not support granting the Veteran's claims of service connection for a right knee disability or for a left ankle disability. Contrary to his lay assertions and Board hearing testimony, the record evidence shows that he does not experience any current right knee or left ankle disability which could be attributed to active service. For example, on VA outpatient treatment in December 2006, the Veteran's complaints included a left ankle injury in June 2006 while playing volleyball with intermittent pain and swelling. He rated his left ankle pain level as 0/10 on a pain scale. Physical examination showed a sore lateral ankle on palpation and range of motion testing which was within normal limits. The diagnoses were ankle sprain and rule-out ligament rupture. VA magnetic resonance imaging (MRI) scan of the left ankle taken in January 2007 noted tendinosis of peroneus brevis tendon and no ligament tears. On VA outpatient treatment in June 2007, the Veteran's complaints included left ankle pain. The diagnoses included chronic left ankle pain and a history of pain and injury which was stable and without symptoms. In December 2013, when he reestablished care with VA, he reported a medical history of left ankle problems. At that time, the VA clinician concluded that the Veteran's current right knee pain was "likely related to" a recent motorcycle accident which occurred in 2011. VA MRI scan of the left ankle taken in March 2014 showed mild tendinopathy and sequelae of a prior inversion injury with chronic tearing. On VA outpatient treatment in April 2014, he complained of right anterior knee pain for the previous 8-9 months which worsened with running. He denied any history of right knee injury and currently was asymptomatic. Physical examination showed he was limping "when he gets pain" with a full range of motion. X-rays of the right knee were normal and an MRI scan of the right knee was unremarkable. The VA clinician concluded that this was a normal examination. In June 2014, the Veteran received an injection to the left ankle to treat his left ankle tendinosis. On VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in June 2016, the Veteran's complaints included right knee pain when driving for a long time or when running. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran experienced flare-ups of right knee pain "if he runs" which occurred about once a week and lasted "from about 10-30 minutes." He was able to move his knee during a flare-up although, "It just hurts." He denied any functional loss or impairment. Range of motion testing of the right knee was normal. Physical examination of the right knee showed 5/5 muscle strength and no joint instability. X-rays showed no arthritis. A December 2013 MRI was reviewed and showed a normal right knee. The VA examiner opined that it was less likely than not that the Veteran's claimed right knee disability is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was that the Veteran's post-service medical records showed that his knee was normal. The rationale further was, "His exam today was normal. He walked without a limp." The VA examiner concluded that the Veteran did not have a diagnosis of a knee and lower leg condition. On VA ankle conditions DBQ in June 2016, the Veteran's complaints included a history of multiple left ankle injuries during active service. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported that his left ankle was not bothering him after his separation from service so he did not seek treatment for it. He experienced flare-ups of left ankle pain "about once a month and lasts about 2 5 minutes. He can walk during a flare-up. 'I feel that pain.'" He denied any functional loss or impairment. Range of motion testing of the left ankle was normal. Physical examination showed 5/5 muscle strength and no joint instability. X-rays showed no arthritis. The VA examiner opined that it was less likely than not that the Veteran's claimed left ankle disability is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was that a post-service MRI showed only minimal tendinopathy. The rationale further was, "His ankle exam today was totally normal." Contrary to the Veteran's lay assertions and hearing testimony, the record evidence shows that he does not experience any current disability due to his claimed right knee or left ankle disability which could be attributed to active service. The Board already has conceded that the Veteran likely injured his right knee and left ankle during service. More is required to establish service connection, however. The Board notes that the Veteran testified in August 2021 that he did not seek treatment for either of these claimed disabilities because going on sick call was discouraged by his commanding officers and fellow Marines. These assertions are not supported by a review of the Veteran's contemporaneous service treatment records which show that he complained of and sought treatment for a variety of orthopedic problems (and other problems), including left knee pain, throughout his Marine Corps service. Thus, it seems unlikely to the Board that the "command atmosphere" discussed by the Veteran in his hearing testimony prompted him to avoid seeking medical treatment for any right knee and left ankle problems during service. The Board also finds it highly persuasive that a VA clinician attributed the Veteran's post-service complaints of right knee pain to his involvement in a motorcycle accident which occurred in 2014. Critically, the VA examiner opined in June 2016 that neither the claimed right knee disability nor the claimed left ankle disability is related to active service. Both of these opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a right knee disability or a left ankle disability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence other than the Veteran's unsupported lay assertions and hearing testimony that he experiences current right knee disability or left ankle disability which is related to active service. The Board does not doubt that the Veteran finds his reported right knee and left ankle pain aggravating and difficult to deal with on a daily basis. Nevertheless, the record evidence does not support finding that any current right knee disability or left ankle disability is related to active service. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a right knee disability or a left ankle disability. In summary, the Board finds that service connection for a right knee disability and for a left ankle disability is not warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran finally contends that he incurred bilateral hearing loss during active service, including as due to in-service exposure to significant acoustic trauma. His DD Form 214 shows that his military occupational specialty (MOS) included rifleman and he was awarded the Rifle Sharp Shooter and Pistol Expert medals. This persuasively suggests that he had in-service exposure to significant acoustic trauma. The post-service evidence shows that his hearing was normal bilaterally on VA hearing loss and tinnitus DBQ in July 2016. Nevertheless, he testified persuasively before the Board that his bilateral hearing had worsened since this examination and he increasingly has to ask other people to repeat things because of his hearing problems. Having reviewed the record evidence, and given the length of time which has elapsed since the July 2016 examination, the Board finds that, on remand, another examination should be provided which addresses this matter. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of his claimed bilateral hearing loss. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral hearing loss is related to active service or any incident of service, including as due to in-service exposure to significant acoustic trauma. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.