Citation Nr: 21010404 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-22 690 DATE: February 24, 2021 ORDER Entitlement to service connection for a lower back disability is denied. Entitlement to service connection for a bilateral ankle disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s lower back disability did not have its onset in service, it did not manifest to a compensable degree within one year of discharge, and it is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran’s bilateral ankle disability did not have its onset in service, it did not manifest to a compensable degree within one year of discharge, and it is not shown to be causally or etiologically related to any disease, injury, or incident in service. 3. The Veteran’s bilateral knee disability did not have its onset in service, it did not manifest to a compensable degree within one year of discharge, and it is not shown to be causally or etiologically related to any disease, injury, or incident in service. 4. The Veteran’s hearing loss did not originate during service, did not manifest within one year of separation from service, and is not otherwise etiologically related to his active service. 5. The Veteran’s tinnitus did not originate during service, did not manifest within one year of separation from service, and is not otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 5. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1980 to October 1983. This appeal comes to the Board of Veterans’ Appeals (Board) from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned in February 2019. A copy of the transcript has been added to the record. The March 2020 Board decision remanded the issues of service connection for a lower back, bilateral knee, bilateral ankle, hearing loss, and tinnitus for further development. The Board requested to obtain any outstanding private treatment records, to provide the Veteran with VA examinations for his musculoskeletal disabilities, and to obtain addendum opinions for the Veteran’s hearing loss and tinnitus. After reviewing the actions of the RO, the Board finds there was substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303 (b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a lower back disability 2. Entitlement to service connection for a bilateral ankle disability 3. Entitlement to service connection for a bilateral knee disability The Veteran claims that his lower back, bilateral ankle, and bilateral knee disabilities are related to his duties during military service. Specifically, he reported that as a mortarman he had to carry the ammunition to the cannons which caused his knee, ankle, and lower back problems. He also reported an incident where he was climbing onto an armored personal carrier and fell off with wet gear on which injured his back. He additionally reported the pain in his knees, legs, and ankles began during physical training since he wore boots and would run on bricks and uneven terrain. Service treatment records (STRs), including his enlistment and periodic examinations, are silent for any complaints, treatment, or diagnosis for a back, knee, or ankle disability. The examinations throughout his military service document normal back, knee, and ankle examinations, and the Veteran consistently denied of any recurrent back, knee, or ankle pain in his various Reports of Medial History. Post-service treatment records are largely silent for any documentation related to the lower back, bilateral knee, or bilateral ankle disability. In fact, there is no objective evidence of a bilateral knee disability. Moreover, the Veteran has only been diagnosed with a lower back and bilateral ankle disability once VA examinations were afforded to him after the March 2020 Board decision remanded the issues. There are no treatment records before these VA examinations in September 2020 that indicate the Veteran suffers from any of the disabilities. The Veteran reported that he could not afford health insurance for a long time and now finally has medical insurance. Moreover, the Veteran had mentioned that he sought treatment for his back with a chiropractor, but when VA asked the Veteran to submit information so VA could obtain these private treatment records, the Veteran did not respond with any information. He also reported not seeking medical attention through VA because he was not entitled to VA medical care. As such, there are no medical treatment records to review except for the VA examinations the Veteran was afforded. In the September 2020 VA Knee examination, the examiner reported that the Veteran’s complaints of bilateral knee pain are subjective only. The objective exam for both knees was normal without any objective evidence of a right knee pathology to render a diagnosis. The Veteran reported that his knees gradually started to bother him without a specific injury in 1982 and that he never sought medical attention for his knees during service. He also reported that his knees have gotten worse over the years to the point that he experiences sharp pain when he walks and when he straightens his right knee out. He furthered that the pain with walking is located in the anterior knee and the pain when he straightens the knees out is posteriorly. He also reports the same sharp pain in the anterior left knee, but with no pain when straightening the left knee. He explained that he is not seeking treatment for his knees and he does not take any medication for it. ROM was normal with initial and repetitive-use testing. There was no evidence of ankylosis, muscle atrophy, instability, subluxation, lateral instability, or recurrent effusion. The examiner explained that there was no diagnosis of a bilateral knee disorder and that the complaints are subjective only. The objective exam was normal and thus, the bilateral knee disability was less likely than not incurred in or caused by the Veteran’s military service. In the September 2020 VA back examination, the Veteran was diagnosed with a lumbosacral strain. The Veteran reported that in either 1981 or 1982 he fell off of a tank and landed on his back. He furthered that he was seen by a medic but refused to go to sick call. He explained that the pain is the same as it was when he fell off the tank and that he experiences sharp pain in the center of the lower back when he lies down at night. He denied any radiating pain or numbness or tingling anywhere. The examiner opined that the Veteran’s lower back disability is less likely than not caused by the claimed incident. The examiner noted that the Veteran’s STRs are silent regarding any lower back complaints and that on his April 1983 Report of Medical Examination, he did not document any lower back complaints nor did the examiner report anything. In the September 2020 VA ankle examination, the Veteran was diagnosed with right lateral malleolus avulsion fracture with calcaneal spur and a left calcaneal spur. The Veteran reported that in either 1981 or 1982 his ankles gradually started to bother him when he was stationed in Germany and had to run in boots on cobblestone streets. He reported that he went to sick call a couple of times for his ankles but that he was only given Motrin. He explains that his ankles have gotten worse over the years and that he currently experiences aches in both ankles in the lateral and medial aspects with prolonged standing. He furthered that he feels the ache as soon as he puts weight on his ankles in the morning and that it dies down afterwards. The examiner noted that the Veteran’s STRs are silent regarding any ankle complaints and that during his Report of Medical Examination in April 1983 he did not complain of ankle pain nor did his examiner indicate anything. The examiner opined that it was less likely than not that the bilateral ankle disability was caused by his military service. After review of the evidence, the Board finds that the preponderance of the evidence is against a finding that a lower back, bilateral ankle, and bilateral knee disability is related to a period of active service. Initially, the Board notes that the medical evidence does not contain any diagnosis related to a current bilateral knee disability. Nevertheless, even assuming the Veteran has a current bilateral knee disability manifested by pain and difficulty walking, see Saunders v. Wilkie, 886 F.3d 1356, 1363, 1368-69 (Fed. Cir. 2018), there is no documentation related to a knee disability in STRs, nor within one year after his separation from active service. The Board has considered the Veteran’s lay assertions that he experienced back, knee, and ankle pain during active service; however, the Board finds that his lay reports of onset of his disabilities are inconsistent with the other evidence of record and therefore not credible in this regard. Throughout his military service the Veteran denied back, knee, or ankle pain. Thus, to the extent that the Veteran’s recent reports attempt to establish the onset of symptoms during service, the Board affords these statements no probative value. Therefore, the Board finds that the evidence does not establish the presence of in-service incurrence. Furthermore, there is no probative evidence of record indicating that the Veteran’s back, knee, or ankle pain is related to his active service. The September 2020 VA examinations opined that for all three of the disabilities it was less likely than not that the disabilities were etiologically related to military service. There is no indication of a positive medical nexus, except for the lay assertions by the Veteran. The Board notes that the Veteran is competent to report the pain he personally experienced. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that such assertions purport to establish a disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the Board affords the Veteran’s assertion that his back, knee, and ankle pain are related to active service no probative weight. Moreover, the earliest competent and credible evidence indicating the presence of a back and ankle disability was in September 2020—about 37 years after the Veteran separated from military service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the Board notes that none of the Veteran’s current disabilities were diagnosed or manifested to a compensable degree within one year of service discharge and thus, the Veteran does not meet the requirements to establish presumptive service connection. Based on the foregoing, the Board finds that the preponderance of the competent and credible evidence is against a grant of service connection for a lower back, bilateral ankle, and bilateral knee disabilities. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to service connection for hearing loss 5. Entitlement to service connection for tinnitus The Veteran filed service connection claims for hearing loss and tinnitus, which were denied by an April 2017 rating decision. The Veteran asserts that his hearing loss and tinnitus are due to his active service. Specifically, that as a mortarman he was around 81-millimeter cannons consistently and even though he was provided hearing protection he did not wear them since he needed to hear the commands. The Veteran’s military noise exposure is not at issue, as noise exposure is consistent with his military occupational specialty (MOS). However, for service connection to be warranted it must be shown that such military noise exposure actually caused a hearing loss disability for VA purposes and/or caused tinnitus. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s STRs show that at his entrance examination and his 1983 audiological examination show normal hearing and no threshold shift was apparent at the end of the Veteran’s military service in October 1983. Moreover, his STRs contained no complaints, symptoms, treatment, or diagnosis of hearing loss or tinnitus. In March 2017, the Veteran was afforded a VA examination. He reported noise exposure due to his MOS. He also reported that his hearing currently is muffled sounding and generally unclear. The Veteran was diagnosed with bilateral sensorineural hearing loss and the examiner reported that there was no permanent positive threshold shift greater than normal measurement variability for both ears during military service. The examiner claimed that history of noise exposure included being a right-handed shooter and work as a mortarman. The Veteran reported that hearing protection was worn as required and that he participated in a hearing conservation program. The Veteran also declined both recreational and post-service noise exposure. The examiner further opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by military noise exposure. The examiner explained that the Veteran’s entrance audiogram and an annual audiogram in 1983 near the time of the Veteran’s separation from service were consistent with normal hearing bilaterally. The examiner thus opined that the Veteran’s current hearing loss was less likely than not associated with military noise exposure. The Veteran reported that his tinnitus has occurred over the past several years, but that he could not identify an exact time, date, or event surrounding the tinnitus onset. The examiner opined that the Veteran’s current tinnitus symptoms were less likely than not associated with military noise exposure since the Veteran had normal hearing bilaterally throughout his military service. The examiner also noted that the Veteran could not identify a specific time, date, or event surrounding his tinnitus onset. In the February 2020 Board hearing, the Veteran reported that he worked with canons and that even though he was given hearing protection, he was unable to wear them in order to hear his commands. He reported having tinnitus soon after he started firing the mortars. He further reported no recreational or occupational noise exposure post-service. The Veteran was provided an addendum opinion in May 2020 where the examiner explained that the July 1980 entrance exam and interim examination in April 1983 showed hearing within normal limits. The examiner furthered that there was no separation examination available for review. The examiner continued to explain that although the Veteran’s MOS of indirect fire infantry conceded noise exposure and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. The examiner explained that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The examiner relied on the Institute of Medicine’s Landmark Study on Military Noise Exposure and reported that there is not sufficient evidence to determine whether permanent noise0induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. The examiner reported that the study concluded that based on the data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The examiner then pointed out that the Veteran did not have any treatment or complaints of hearing loss post-military until his claim in 2017, which was almost 24 years post-military noise exposure. The examiner opined that it was less likely than not that the Veteran’s current hearing loss is related to his military noise exposure. The examiner also reported that there was a lack of evidence of any complaints of tinnitus or hearing loss during service and the time between service and the date of the first audiological evaluation, which was almost 24 years without evidence of any report or complaint of tinnitus during those years in between. The examiner explained that although the Veteran’s MOS conceded noise exposure and the relationship of noise, auditory damage and tinnitus is well-established, auditory damage causing tinnitus is not conceded based on noise exposure alone. Additionally, the Veteran also reported onset of his tinnitus “over the past several years” at the 2017 VA examination. The examiner explained that the current literature does not support late onset noise-induced tinnitus and thus it is less likely as not related to military service or military noise exposure. Regarding the Veteran’s bilateral hearing loss, it is not disputed that he now has hearing loss for VA purposes. It is also not disputed that the Veteran experienced military noise exposure during his active service. However, military noise exposure alone is not considered to be a disability, rather, when sensorineural hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure. The Veteran’s claims file shows that he had normal audiological examinations during his active service and the first objective evidence of hearing loss is not until the March 2017 VA examination. The Veteran has not submitted any medical evidence supporting his assertion that his bilateral hearing loss is due to his active service. VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. The Board finds the greatest probative value in the March 2017 and May 2020 VA opinions. Notably, the Veteran has not submitted any evidence, beyond his own assertions, supporting his contention that his bilateral hearing loss was due to his active service, to include military noise exposure Consideration has been given to the Veteran’s assertion that his bilateral hearing loss was due to his active service. 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 issue in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that the Veteran is competent to report difficulty hearing, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating audiological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value in the determination of the etiology of the Veteran’s bilateral hearing loss. Regarding tinnitus, the Veteran’s STRs are silent for any complaints or diagnoses of tinnitus. The Veteran’s medical records show that he first reported tinnitus in his claim for service connection for tinnitus in January 2017. At the March 2017 VA examination, he reported that his tinnitus began over the past couple of years, but that he could not provide a specific date, time, or event that caused the onset of the tinnitus. The March 2017 VA examiner noted that the Veteran reported an onset of tinnitus a couple years previously and opined that the Veteran’s tinnitus was less likely than not due to his actives service. The Veteran has not submitted any medical evidence supporting his assertion that any tinnitus is due to his active service. VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. The Board acknowledges that the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation, and that lay testimony may provide sufficient support for a claim of service connection. However, here, the Veteran has not asserted that he first noticed tinnitus in service or within one year of service separation except until the February 2020 Board hearing. The Veteran did not report that he was suffering from tinnitus until the 2017 claim. As such, the weight of the evidence is against a finding that the Veteran’s tinnitus either began during or was otherwise caused by his military noise exposure. Therefore, after weighing all the evidence, the Board finds great probative value in the March 2017 and May 2020 VA opinions. Thus, the evidence fails to establish service connection for the Veteran’s tinnitus. Accordingly, the criteria for service connection for bilateral hearing loss and tinnitus have not been met, and the claims are denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.