Citation Nr: 21030970 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-41 865A DATE: May 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right hip disability is denied. FINDINGS OF FACT 1. The most probative (meaning most competent and credible) evidence is against finding that the Veteran had hearing loss in service, or sensorineural hearing loss within a year of separating from service, or that this disability is otherwise related or attributable to his service or a service-connected disability including to the noise trauma he cites as the reason, source or cause of this disability. 2. The most probative evidence is against finding that he had knee and/or right hip complaints in service, or degenerative joint disease of either knee or of his right hip within a year of separating from service, or that he has a left or right knee and/or right hip disability because of his service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 1101, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385. 2. The criteria are not met for entitlement to service connection for bilateral knee disability and/or right hip disability. 38 U.S.C. §§ 1101, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to December 1981. He died in October 2016. The appellant is his surviving spouse, so widow. In December 2019, she was substituted for him pursuant to 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010 to process these claims to completion. These claims were most recently before the Board in June 2020, when the hearing loss disability claim was reopened based on new and material evidence, and all the claims then remanded back to the Agency of Original Jurisdiction (AOJ) for further development and consideration including for medical nexus opinions concerning the origins of these claimed disabilities, particularly in terms of whether related or attributable to the Veteran's military service. There since has been the required compliance certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In addition, certain "chronic" diseases (including sensorineural hearing loss and degenerative joint disease, i.e., arthritis) will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within the one-year presumptive period following separation from service, or if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Also, according to 38 C.F.R. § 3.310, service connection may be granted as well, on a secondary basis, for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A June 1981 service treatment record (STR) indicates the Veteran was injured after a parachute drop several days earlier. He reported dysesthesias in his right foot and pain in his back. The diagnosis was herniated nucleus pulposus (HNP) at L4-5 with lumbosacral spine (LS) radiculopathy. However, this STR is unremarkable for complaints of hearing loss, ear injury, or of trauma to his right hip and/or knees. If he also had injured anything other than his back with symptoms referable to his right foot, and had chronic or significant pain or other complaints, it stands to reason this also would have been documented in his STRs. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases, as here, where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where, as here, the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence, such as that proffered by the Veteran, is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings to rely on this negative inference (see Kahana): 1. First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. 2. If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. Here, the STRs are complete, certainly in relevant part, and, given the gravity of the Veteran's parachuting injury in service, it is reasonable to have expectation of at least some mention of additional injury to his hearing, knees or right hip, but there clearly is not according to his STRs. Indeed, to the contrary, the earliest clinical evidence of any complaints referable to the Veteran's knees and right hip is not for two or more decades after his separation from service. The earliest clinical evidence of hearing loss disability is even longer after conclusion of his service, not for approximately three decades. That long a lapse of time between his separation from service and the earliest documentation of these now claimed disabilities is a factor for consideration in deciding these service connection claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). It is true the mere absence of evidence, such as during those many intervening years (in fact, 20 or more years at minimum), does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Federal Circuit Court also has held however that, while the absence of contemporaneous records (such as treatment records) does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). 1. Entitlement to service connection for bilateral hearing loss disability The Veteran has a ratable hearing loss disability for VA compensation purposes, meaning sufficient hearing loss to meet the threshold minimum requirements of 38 C.F.R. § 3.385. See July 2013 and June 2015 Disability Benefits Questionnaires (DBQs). Thus, resolution of this claim turns, instead, on whether there also is the additionally required attribution of his hearing loss disability to his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also 38 U.S.C. § 1131; 38 C.F.R. § 3.303. However, as will be discussed, the most probative evidence is against this posited correlation ("nexus") between his hearing loss disability and service. The Veteran separated from service in December 1981. In December 1985, he filed a claim for service connection for left ear hearing loss. His DD Form 214 shows that his military occupational specialty (MOS) was infantryman, so noise exposure in service is conceded as he trained with weapons, such as a rifle and grenades. A February 1986 VA examination report reflects that the Veteran recounted noticing a decrease in his left ear hearing beginning in 1982 or alternatively about two years prior to that examination, so in 1984 or thereabouts. He denied any ototoxic medications or any head trauma. It was noted that, while in service, he had noise exposure, including rifle fire and artillery, but that ear protection was routinely used. It was also noted that he has used rifles recreationally. An audiogram revealed that his hearing was within normal limits, bilaterally, so in both ears. Thus, several years after separation, his hearing was determined to be clinically normal upon evaluation, which is probative evidence against any contention as to continuity of symptoms since his service. A March 1988 private record (The Medical Center of Lake County) reflects that the Veteran was seen in the emergency room for neurosurgical consultation after having been beaten up and possibly suffering a concussion. While having his systems reviewed, he "claimed to have good hearing bilaterally", so, again, in both ears. That, too, is against finding that he had hearing loss or that he had had continuous symptoms since his service. A November 1997 examination for the State of Illinois Bureau of Disability Determination Services (Dr. G.V.) indicates the Veteran's hearing was normal, and both Rinne and Weber tests were normal. That was more than 15 years after his separation from service and is further probative evidence against any notion of continuity of symptoms since his service. An April 2009 North Chicago VA Medical Center (VAMC) explains the Veteran sought an audio evaluation for a complaint of bilateral gradual hearing loss for approximately the past 25 years and tinnitus for approximately the past 5 years. He was assessed with normal hearing in the frequencies of 250-4,000 Hz with mild loss above 4,000 Hz. His hearing loss was slightly more in his left ear than right ear. On his June 2012 VA Form 21-526b (Supplemental Claim), the Veteran stated that he had hearing loss due to traumatic noise exposure as an infantry soldier. An August 2012 Miracle-Ear Center record notes hearing loss, but there was no attribution of the hearing loss to his service including to his duties and responsibilities in the infantry. As already mentioned, the July 2013 DBQ confirms the Veteran had hearing loss, bilaterally, but also that it could not have been due to his service. The examiner reasoned that the Veteran had normal hearing in 1986, so in the interim, and he could not have suffered permanent hearing loss during his service (1980-1981) and, yet, then have had normal hearing in 1986. On a February 2014 VA Form 21-4138 (Statement in Support of claim), the Veteran asserted that his hearing loss was secondary to the parachuting accident in service. He contended that, in June 1981, he injured his back and that, at the same time, he most likely also hurt his head. He added that, at the time, he had difficulty hearing. The Veteran is competent to state that he had difficulty hearing; however, the Board finds that any assertion of hearing loss rather immediately after that parachuting accident in service or of continuity of hearing impairment since his service is not credible. As already discussed, the STR noting back complaints owing to that parachuting accident are grossly unremarkable for consequent indication of hearing loss, head injury, or ear-related complaints. In addition, in February 1986, while having his hearing evaluated, he specifically denied any prior head trauma. It seems only reasonable that, if he had head trauma with hearing loss in service, and indeed, was being examined for any then current hearing loss, including as a result or consequence, he would have noted prior head trauma rather than denying it. Thus, his contrary statement much more recently, long after the fact, is not credible. The June 2015 DBQ indicates the Veteran reported hearing loss onset near the time of his separation from service in 1981. He additionally, however, reported a post- service work history in construction "on and off" for seven years without use of hearing protection. The examiner found that the Veteran's use of Vicodin (for back pain) would not be related to his current hearing loss as his Vicodin use began approximately two years prior to that DBQ, so in 2013 or thereabouts, which was several years after the onset of his hearing loss. A more recent August 2020 DBQ contains the opinion of the examiner that it is less likely than not the Veteran's hearing loss is due to his service. In explanation, this examiner duly acknowledged the Veteran's service in the infantry had a high risk for noise exposure, but also pointed out that the mere fact of being high risk does not indicate the Veteran will necessarily develop hearing loss. This examiner explained that, although "some papers have suggested a delayed onset hearing loss, that is not the accepted position based on the entirety of the medical literature. [Rather, according to this examiner,] the accepted position is that hearing loss from acoustic trauma will develop in proximity to the noise exposure. The fact there is an audiogram 5 years after the service showing no hearing loss clearly demonstrates that the current hearing loss has no relationship to military service." In sum, then, the Veteran had normal hearing for many years after separating from service, including, notably, during that intervening hearing evaluation in 1986. He admittedly had noise exposure in service but also since service, indeed, over the course of many years, so it can be reasonably surmised that he had noise exposure due to his civilian occupations in construction, carpentry, and as a truck driver and on account of his recreational use of rifles and riding a motorcycle. The most probative evidence is against finding that his hearing loss is due to noise exposure during his service, or that parachuting accident in service, or the medication taken for treatment of a service-connected disability. According to the holdings in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), VA regulations do not necessarily preclude service connection for hearing loss that first met the requirements of 38 C.F.R. § 3.385 after service. See also 38 C.F.R. § 3.303(d) (permitting service connection when the initial diagnosis was after service, provided the evidence, including that pertinent to service, shows the disability was incurred in service). Here, though, while § 3.385 does not necessarily preclude service connection when hearing loss first meets this regulation's requirements for a ratable disability after service, it also does not hold that service connection is warranted, or mandatory, for hearing loss disability first shown after service (particularly so long after service) in the absence of competent and credible evidence of the required attribution of the hearing loss disability to the Veteran's service or competent and credible evidence of continuity of symptoms since service as an alternative means of establishing this required correlation ("nexus"). See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Neither means of linking the current hearing loss disability to the Veteran's service is competently and credibly shown here. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For these reasons and bases, service connection is not warranted. 2. Entitlement to service connection for a right knee disability AND 3. Entitlement to service connection for a left knee disability The Veteran contended that his bilateral knee disabilities were related to his service-connected low back disability. Alternatively, he indicated the conditions were directly related to service, to include an in-service parachuting accident. The Board finds that the more probative evidence is against service connection on a direct or secondary basis. The Veteran's STRs are unremarkable for knee complaints. Post-service, the Veteran was examined on numerous occasions over two decades for his spine and did not report injuring his knees in a parachuting incident. The Board finds that if the Veteran had injured his knee(s) at the same time that he had injured his spine, and if he continued to have chronic symptoms, he reasonably would have reported them to the clinicians. An August 1990 VA examination report for the Veteran's back reflects that there was no deformity, atrophy, swelling or discoloration of either lower extremity, and that he was able to squat and raise himself again. A July 1993 VA examination report reflects that the Veteran reported that his back hurts and has shooting pain to his buttocks and both knees, especially on the right; however, the report is unremarkable to a knee injury in service or knee pain unrelated to radiating pain from his back (i.e., an actual knee disability). (The Veteran is in receipt of service connection for radiculopathy of the right and left lower extremities.) In 1996, the Veteran applied for Social Security Administration (SSA) benefits. The records reflect that the Veteran reported diabetes, migraines, a hernia, a sleep disorder, an acquired psychiatric disability, and neck injury and blunt head trauma as a result of a physical attack post-service which "resulted in ongoing back [and] neck problems, nerve problems, loss of feeling [and] strength in the arms [and] legs." The SSA records are unremarkable for a knee injury in service, chronic knee pain, or a diagnosed knee disability. If the Veteran had chronic knee problems, it seems reasonable that he would have reported it as he was seeking disability benefits and he was discussing his legs as they related to his spine. Additional, VA examinations for his back in September 1997, July 1999, and June 2002 are again unremarkable for knee complaints. At his September 1998 RO hearing for his back, the Veteran reported that his back pain radiates to his lower extremities and at times, the pain gets so intense that it feels like his knees are buckling back under him. He did not describe an actual disability originating in the knee. VA examination reports in June 2002 and October 2003 reflect that the Veteran used a wheelchair and no longer walked. The October 2003 VA examination report reflects that he could not walk due to his back pain. The reports are unremarkable for knee symptoms. A June 2015 VA DBQ reflects diagnoses of left knee joint osteoarthritis and right patellofemoral pain syndrome. The Veteran reported he developed knee problems from a jump injury in service, which the Board finds is not credible. He also stated his knee problems started around 2004. Even assuming arguendo that the Veteran had knee symptoms as early as 2004, this would still be more than 20 years after separation from service. The 2015 examiner indicated the knee disorders were not related to service, and noted that the Veteran's STRs did not contain records of any knee injuries or treatment, including no knee pain or effusion at his May 1981 examination related to the parachuting incident. The examiner also noted that the Veteran reported an onset of knee pain in 2004, over 20 years after service. An August 2020 DBQ nexus examination report reflects the opinion of the examiner, after a review of the medical records, that it is less likely as not that the Veteran had a knee disability which was caused by his service-connected back disability. The examiner opined that there is no supporting evidence in the medical literature of lumbar spine spondylosis or associated radiculopathy causing knee joint disorders. There is no competent and credible opinion (i.e., based on a review of the pertinent evidence and with supporting rationale) supporting the Veteran's assertions. In sum, the most probative evidence is against a knee injury in service, against chronic pain in the next two decades, and against a finding that he had a knee disability causally related to, or aggravated by, service and/or a service-connected disability. Thus, service connection is not warranted. 4. Entitlement to service connection for a right hip disability The Veteran reported that he had a right hip disability which was related to his service-connected back disability. Alternatively, he indicated that it was related to service, to include his in-service parachuting accident. The Veteran's STRs are unremarkable for a right hip complaint (although they note left hip complaints). As noted above, a June 1981 STR reflects dysesthesias in his right foot and pain in the back; however, the STR is unremarkable for any injury to the right hip. Also as noted above, post-service, the Veteran was examined on numerous occasions for his spine and did not report injuring his right hip in the parachuting incident. The Board finds that if the Veteran had injured his hip at the same time that he had injured his spine, and if he continued to have chronic symptoms, he reasonably would have reported them to the clinicians. Also, again, as noted above, an August 1990 VA examination report for the Veteran's back reflects that there was no deformity, atrophy, swelling or discoloration of either lower extremity, and that he was able to squat and raise himself again. It also notes that his hips were level. A July 1993 VA examination report reflects that the Veteran reported that his back hurts and has shooting pain to his buttocks and both knees, especially on the right; however, the report is unremarkable for a hip injury in service or hip pain unrelated to radiating pain from his back. The hips were noted to be level. Additional, VA examinations for his back in September 1997, July 1999, and June 2002 are again unremarkable for hip complaints, other than the July 1999 noting that the numbness and tingling in both legs from his groin and hip area down to all of his toes. At his September 1998 RO hearing for his back, the Veteran reported that his back pain radiates to his lower extremities. His testimony is unremarkable for a hip injury in service. The October 2003 VA examination report reflects that he could not walk due to his back pain; the examiner noted that he could not find objective evidence to indicate any disc syndrome or neurologic involvement in the lower extremities. The record is unremarkable for a hip disability. The Veteran was afforded a June 2015 VA examination in which he was diagnosed with bilateral trochanteric pain syndrome. He reported the hip disorders began giving him problems around 2002 and gradually worsened; this would be approximately 20 years after separation from service and after employment in manual labor. The examiner opined that the Veteran did not have a hip disability related to service because the only STR regarding the hips was one day of left hip complaint (due to a swimming mishap in May 1981), the Veteran did not report an onset of symptoms until two decades later. An August 2020 DBQ contains the opinion of the examiner that it is less likely as not that the Veteran has a right hip disability causally related to service and/or a service-connected disability. The opinion was based on the lack of STRs noting right hip complaint (despite one with regard to the left hip), the lack of post-service records noting right hip complaints for many years after separation from service, and no supporting evidence in the medical literature of lumbar spine spondylosis or associated radiculopathy causing hip disorders. There is no competent and credible opinion (i.e., based on a review of the pertinent evidence and with supporting rationale) supporting the Veteran's assertions. In sum, the most probative evidence is against a right hip injury in service, against chronic pain in the next two decades, and against a finding that he had a right hip disability causally related to, or aggravated by, service and/or a service-connected disability. Thus, service connection is not warranted. Conclusion of all claims for service connection The Board acknowledges the Veteran had a parachuting accident in 1981 that unfortunately resulted in injury to his lumbar spine. However, his consequent low back disability already has been determined service connected, as has associated disability including the radiculopathy of his lower extremities. And the Board conversely finds that the evidence does not support an additional injury to his ears, knees, or right hip in service, including in that parachuting accident, or owing to any other parachuting incident or trauma during his service. Neither the Appellant nor the Veteran has been shown to have, or have had, the experience, training, or education necessary to give a probative opinion regarding the origins of his claimed disabilities including in terms of whether related or attributable to anything that occurred during his time in the military, or to a service-connected disability. This determination is beyond lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The Board also sees that the Veteran's service personnel records (SPRs) reflect that he was given a general discharge due to his failure to maintain acceptable standards for retention for several reasons that include "riding sick call" and writing bad checks, both of which can be seen as involving a measure of dishonesty. Post service, he was noted to possibly have had a "psychogenic" element to some of his physical complaints (i.e., having a psychological origin or cause rather than a physical one). He also had reported memory problems (a July 1988 private record shows he reported continuing memory problems, which his wife also had noticed, after a head injury). Taken singly, or certainly together, those indications tend to casts doubt on his credibility, especially when considered in relation to his clinical records giving a different account of how things transpired. Given the onset of symptoms many years after separation from service, the unfavorable clinical opinions, and the lack of a probative medical opinion (i.e., based on review of the pertinent clinical records and with rationale) supporting the notion that the Veteran had a disability due to, or aggravated by, his service and/or a service-connected disability, service connection is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.