Citation Nr: 21005632 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-28 046 DATE: February 2, 2021 ORDER Service connection for a left knee disability is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran has a current left knee disability. 2. The evidence is insufficient to show that the Veteran’s hearing loss is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 2008 to May 2012. A Board decision in October 2019 remanded the issues of service connection for a left knee condition, bilateral hearing loss, tinnitus, bilateral eye conditions, and a right shoulder disability. A rating decision in July 2020 granted service connection for tinnitus and the eye conditions. As such, these two issues are no longer before the Board. A Supplemental Statement of the Case (SSOC) in July 2020 continued to deny service connection for hearing loss, the left knee, and right shoulder. The Veteran filed a higher level review request (VA Form 20-0996) in July 2020 for the issue of service connection for the right shoulder, and later in December 2020, filed a supplemental claim for service connection for the right shoulder. Accordingly, this issue is now being considered by the Agency of the Original Jurisdiction (AOJ) under the Veterans Appeals Improvement and Modernization Act (AMA), and the only issues remaining before the Board are service connection for hearing loss and left knee. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. §§ 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). 1. Left knee The Veteran is seeking service connection for his left knee condition, which he believes onset during his active military service. Service treatment records (STRs) show that Veteran reported experiencing pain in the left knee with running at his separation physical in March 2012, with onset after his deployment in February 2012. However, he declined referral for care, indicating that it was not an ongoing issue at that time. Post-service medical records do not show any diagnosis or treatment of left knee disability. VA examination in January 2020 showed no diagnosis of left knee. On examination, the left knee demonstrated normal range of motion without pain noted. X-rays of the left knee showed normal results. The examiner opined that there were no findings, signs and/or symptoms to support a diagnosis. The objective findings including goniometer testing and x-rays of left knee were all negative for a left knee condition. VA examination in February 2020 again showed no diagnosis of any left knee disability. On examination, the left knee demonstrated normal range of motion without pain noted. The Veteran reported that had pain in his legs during boot camp, and his current symptoms included pain in the left leg if he ran more than two miles or lift anything more than 150 lbs. The examiner concluded that the Veteran did not have diagnosis of bilateral shin splints as there were no objective findings such as pain with ambulation, tenderness/swelling along the shin areas. VA treatment records fail to show any mention of a knee problem. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, as discussed, no left knee disability has been diagnosed, and there is no showing of any functional limitation as a result of the Veteran’s left knee. Accordingly, service connection for a left knee disability is denied. 2. Hearing loss The Veteran is seeking service connection for bilateral hearing loss, which he believes, resulted from noise exposure he experienced in service. His military personnel records (DD214) showed his miliary specially (MOS) was automotive maintenance technician and he had received marine combat training. As such, military noise exposure is conceded. However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused a hearing loss disability as defined in VA regulations. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R.§3.385. STRs documented the following audiological examination results: • Enlistment physical in February 2008: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 0 LEFT 5 10 5 5 10 • March 2008 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 -10 5 5 LEFT 10 5 0 5 5 • January 2009 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 -5 5 5 LEFT 10 5 5 5 5 • September 2010 HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 20 20 LEFT 15 15 15 10 10 • October 2010 HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 20 15 LEFT 15 15 15 15 10 • Separation physical in March 2012: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 5 LEFT 10 5 0 10 5 VA treatment records do not show any complains or treatment for hearing loss as of May 2019. A private audiological examination in January 2019 showed following results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 30 35 35 LEFT 35 40 35 40 40 The private audiologist opined that the Veteran’s bilateral hearing loss was a direct result from his military service, but did not provide any rationale. The Veteran was afforded a VA audiological examination in January 2020, which showed the following results: HERTZ 500 1000 2000 3000 4000 Maryland CNC RIGHT 20 20 15 25 25 94% LEFT 15 15 15 20 30 84% The examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) due to his military noise exposure, and provided the following rationale: The Veteran served for approximately 50 months on active duty in the Marines. His MOS was an Automotive Maintenance Technician on the Motor Team, which is considered a high probability for hazardous noise exposure. He reports the armored vehicles exposed him to the most noise while serving in the Marines. The Veteran had a military reference audiogram on March 19th, 2008 which revealed hearing within normal limits from 500-6000 Hz., bilaterally. The Veteran had a separation audiogram on March 1st, 2012 which revealed hearing within normal limits from 500-6000 Hz., bilaterally. There were no significant threshold shifts compared to the reference audiogram. An annual audiogram during 2010 revealed a temporary significant threshold shifts in each ear. The lack of a permanent threshold shift weakens the claim for hearing loss. The Veteran presents with a mild sensorineural hearing loss from 4000-8000 Hz. with reduced speech discrimination. The speech discrimination scores are worse than would be expected from the pure tone testing. This hearing loss may be due to post military noise exposure from working as a heavy equipment operator. [The private audiologist] who wrote the opinion did not cite any evidence or reason as to why the Veteran’s hearing loss is due to military noise exposure. An opinion without a rationale or evidence lacks credibility The Board finds that the January 2020 VA medical opinion is more probative than the January 2019 private opinion which did not provide any supporting rationale. The VA opinion is supported by a sound rationale based on the evidence of the record, to include STRs. The VA opinion is thus afforded great probative value. As such, the evidence is insufficient to support a nexus between the Veteran’s hearing loss and his noise exposure during service. Service connection for bilateral hearing loss is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.