Citation Nr: 21030808 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-67 026 DATE: May 19, 2021 ORDER Service connection for right knee disability is denied. REMANDED Entitlement to service connection for disabilities of bilateral upper extremity, to include vascular disease or neuropathy or cold injury residuals, is remanded. Entitlement to service connection for disabilities of bilateral lower extremity, to include vascular disease or neuropathy or cold injury residuals, is remanded. Entitlement to a compensable rating for a bilateral hearing loss disability, is remanded. FINDING OF FACT The Veteran's right knee disability was not manifest during active service or within the first post-service year, and is not attributable to service. CONCLUSION OF LAW Right knee disability, to include arthritis, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1967 to November 1971. He timely appealed these matters from a March 2017 rating decision. In September 2020, the Veteran testified during a virtual hearing before the undersigned; a transcript of the hearing is associated with the claims file. In this case, all available records identified by the Veteran as relating to the claim decided below were obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). For the claim decided below, there is neither evidence of pertinent disability in active service, nor competent medical evidence suggesting a relationship between current disability and active service. Based solely on these facts, VA has no duty to provide a VA examination or obtain a medical opinion, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. In this case, the Veteran was presumed sound at service entry. Clinical evaluation at entry in November 1967 was normal, and no disability was recorded. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran seeks service connection for right knee disability. He contends that he suffered a right knee injury in active service, and eventually underwent surgery later in life. He underwent a right total knee replacement in or about 2007, followed by a long period of rehabilitation with ongoing limited motion. He made these same allegations repeatedly and consistently. Where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Service treatment records do not reflect any findings or complaints of right knee pain. Nor is there evidence of trauma or injury to the Veteran's right knee in active service. There is no evidence of treatment in active service for any right knee pain. Clinical evaluation of the Veteran's lower extremities was normal at his separation examination in October 1971. VA records show treatment for right knee pain in September 2012. X-rays of the Veteran's right knee at that time revealed a total knee arthroplasty; components were in good position. Suprapatellar calcifications, most likely, were enthesopathy. Private records show treatment for worsening right knee pain in December 2015. The pain was aching and was aggravated by climbing stairs and by walking. Associated symptoms included joint tenderness. There was neither locking nor swelling. In June 2017, the Veteran reported having right knee pain for a long time; and reportedly, he had to wait until age 60 before undergoing a right knee replacement. In September 2020, the Veteran testified that he did not complain of everything in active service and that lots of things were not documented. Nor did he remember the situation of a knee injury that occurred fifty years ago, involving either knee; rather, the Veteran testified that he still suffered from knee problems. While he is competent to describe his symptoms, here, the evidence does not reveal any right knee problems or injury in active service. The Veteran was treated for left knee pain of one week's duration in active service in March 1969. The impression at that time was left knee strain at quadriceps insertion upon patella; his profile was limited for a period of ten days in active service. There is no indication that both knees were injured simultaneously, or that one knee had greater pain than the other. Further, there is no showing of disability of either knee at the Veteran's separation examination from active service in October 1971. Nor is there evidence of chronicity of care since service. In this regard, a continuity of symptomatology of a chronic disease, to include arthritis of the knee, is not established. Walker, 703 F.3d at 1338-39. The evidence does not show that a right knee disability had its onset in active service, or that arthritis of right knee manifested within one year after the Veteran's separation from active service. The first credible showing of pertinent disability is many years after service, with no competent evidence that right knee disability is in any way related to active service. As such, he is not entitled to direct or presumptive service connection. In short, the preponderance of the evidence is against granting service connection for right knee disability. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Bilateral Upper Extremity and Bilateral Lower Extremity The Veteran seeks service connection for disabilities of bilateral upper extremity and bilateral lower extremity. He reportedly suffered from frostbite numerous times while stationed during winters in North Dakota. The Veteran described a history of numbness and pain in both feet and hands since then. He is competent to describe his symptoms. In September 2020, the Veteran testified that he served on the flight line daily in active service while stationed one winter in North Dakota. He described the flight line as "an open area," where average temperatures ranged from -20 degrees Fahrenheit to -60 degrees Fahrenheit. The Veteran testified that he worked on the radar on fighter aircrafts, often with the engines running. He stayed on the flight line anywhere from a half-hour to three hours, wearing steel-toed shoes and gloves; and gloves were often removed to work on boxes in the airplane. He testified that he could not feel his fingers or toes when he came indoors. His personnel records show a military occupational specialty as a "weapon control systems mechanic" and assignment to Grand Forks Air Force Base in North Dakota from October 1968 to May 1970. The Veteran's suffering from cold injury in active duty service is consistent with the facts and circumstances of his service. VA recognizes numerous conditions as the chronic effects of cold exposure. Injury due to exposure to extremely cold temperatures causes structural and functional disturbances of small blood vessels; cells; nerves; skin; and bone; and that the physical effects of exposure may be acute or chronic, with immediate or latent manifestations. Under these circumstances, an examination or medical review, as appropriate, is needed to determine whether the Veteran has current disabilities of bilateral upper extremity and bilateral lower extremity, to include vascular disease or neuropathy or residuals of cold injury, that either had their onset during service or are related to his active service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(4). Bilateral Hearing Loss Disability In his September 2020 testimony, the Veteran contended that his bilateral hearing loss disability has progressively worsened over the years. His last VA examination was in March 2017. There also was a discrepancy in results of speech discrimination testing between a private hearing center in April 2017 and the March 2017 VA examination score. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records for the period from July 2018 to the present. 2. Schedule a VA cold injury protocol examination or medical review, as appropriate; the claims file must be reviewed in conjunction with the examination. Identify all current conditions and disabilities of left and right hands, and left and right feet; and opine as to whether any such had its onset in active service, or is at least as likely as not caused or aggravated by active service, to include injury from cold exposure on flight lines during harsh weather conditions in North Dakota. If any identified hand or foot disability is more likely to be attributable to a factor other than cold injury, such must be clearly stated. 3. Schedule the Veteran for VA audiology examination to determine the current severity of his service-connected bilateral hearing loss disability. 4. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.