Citation Nr: 21042304 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-00 691 DATE: July 12, 2021 ORDER 1. Entitlement to service connection for a bilateral hearing loss disability is denied. 2. Entitlement to service connection for tinnitus is denied. 3. Entitlement to service connection for a left knee disability, to include degenerative joint disease (DJD) (also claimed as joint pains), is denied. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability for VA purposes. 2. Left ear hearing loss disability did not have its onset in service, sensorineural hearing loss was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service. 3. Tinnitus did not have its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service. 4. The preponderance of the evidence is against finding that the left knee disability was incurred in or otherwise related to service. A left knee disability was not chronic in service, DJD was not manifested to a compensable degree within one year of service, and was not continuous since service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a left knee disability, to include DJD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to July 1991 and periods of active duty for training (ACTDUTRA). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. At the hearing, the undersigned explained that service connection for a left knee disability had been denied in an August 2012 rating decision and had become final. However, after that rating decision, VA received a May 1994 Report of Medical Examination and Report of Medical History, which showed the Veteran reported occasional left knee pain, which allows reconsideration of the claim for service connection for a left knee disabilities under 38 C.F.R. § 3.156(c) upon the receipt of service department records. Thus, the issue has been properly characterized as a service-connection claim versus an application to reopen. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, which are organic diseases of the nervous system, and DJD, which is arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran testified that his hearing loss began during his period of active service from November 1990 to July 1991. He testified that he experienced acoustic trauma through in-service welding and metalwork due to his MOS and from normal weapons qualifications, ordinance, and his work as a radio operator. He frequently has to ask people to repeat themselves when speaking to him. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss disability. The reasons follow. As to evidence of a current disability, a November 2018 VA examination report showed puretone thresholds, in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 35 35 LEFT 30 25 20 30 35 The Maryland CNC Word List Speech recognition score for the Veteran's right ear was 94 percent and the left ear was 86 percent. The November 2018 examination report shows that the Veteran's hearing loss rose to the level of a left ear hearing loss disability as defined by 38 C.F.R. § 3.385, as the Veteran has three thresholds that have greater than 26 decibels. Therefore, the facts establish that the first element of a direct service-connection claim is met for the left ear only. However, as to the right ear, the preponderance of the evidence is against a current hearing loss disability for VA purposes. The November 2018 hearing test results do not show three or more auditory thresholds of 26 decibels or greater or one threshold of at least 40 decibels or greater. To this extent, the claim for service connection for right ear hearing loss disability is denied, as hearing loss must meet the criteria for a "disability" under 38 C.F.R. § 3.385 to establish entitlement to service connection. As to evidence of an in-service disease or injury related to the left ear hearing loss disability, the service treatment records (STRs) show that the Veteran worked as a metal worker; therefore, noise exposure is conceded. Thus, the facts establish that the second element of a service-connection claim is met for the left ear hearing loss disability. As to evidence of a nexus between the current left ear hearing loss disability and service, the Board finds that the preponderance of the evidence is against such a nexus. For example, a May 1994 periodic Report of Medical Examination (RME) documents the Veteran's ears were clinically evaluated as normal. The November 2018 VA audiologist stated that the hearing test performed at that time showed normal hearing. The Physical Profile Serial Report showed a PULHES score of 1 for hearing and ears. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "H" stands for "hearing and ears." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Thus, the Veteran's hearing and ears were assigned a 1, which denotes a high degree of physical fitness. On the May 1994 period Report of Medical History (RMH), the Veteran denied any ear, nose, or throat trouble and hearing loss. Thus, almost three years following service discharge, the Veteran did not have a left ear hearing loss disability based on an audiogram, and he denied a history of hearing loss at that time. This is evidence against the Veteran having a left ear hearing loss disability when he left service in 1991. Additionally, a November 2018 audiologist provided a negative nexus opinion. The audiologist opined the Veteran's hearing was within normal limits at enlistment in October 1990. The audiologist noted there is no separation examination from active duty in 1991, but a National Guard examination in May 1994 showed hearing still within normal limits per VA guidelines with no significant shift in thresholds noted when compared to the enlistment examination. The audiologist explained per research by the Institute of Medicine (IOM, 2005), a permanent shift in hearing thresholds would be observed at the time of the event if acoustic trauma results from noise exposure. Therefore, IOM has determined that delayed onset threshold shifts are not a scientifically recognized consequence of acoustic trauma. The audiologist wrote the IOM report currently remains the most comprehensive review regarding effects of noise exposure in humans. With no permanent decrease in hearing thresholds observed on examination almost three years after discharge from active duty, there is no objective evidence that acoustic trauma or noise injury occurred during active duty service as a result of any military noise exposure to account for the current hearing loss and/or reported tinnitus. The audiologist documented the Veteran reported he was provided hearing protection in the metal shop but not during weapons training exercises. The audiologist also reported the Veteran denied a history of recreational noise exposure. The Board affords the November 2018 VA medical opinion high probative value, as the audiologist reviewed the file, examined the Veteran, and provided an opinion, which included a rationale that was based on evidence in the file, medical principles, and medical literature. An April 2016 private treatment record shows the Veteran was diagnosed with bilateral sensorineural hearing loss, which, as noted above, is a chronic disease that can be service connected if the disease is manifested within one year of service discharge. There is no competent evidence within one year of discharge from active duty upon which to find that sensorineural hearing loss manifested to a compensable degree. Thus, the preponderance of the evidence is against presumptive service connection for bilateral sensorineural hearing loss based on a chronic disease. While the Veteran has alleged that his bilateral hearing loss disability is related to service, he is not competent to directly link the bilateral hearing loss disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent evidence of a positive nexus between the bilateral hearing loss disability and service upon which to weigh against the November 2018 VA audiologist's opinion. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral hearing loss disability. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is the result of loud noises he was exposed to in service while working as a metal worker. He testified that he experiences constant ringing which causes headaches frequently. As a result of the constant ringing in his ears, he has trouble talking on the phone and speaking and listening in crowds. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for tinnitus. The reasons follow. As to evidence of a current disability, tinnitus is a disability capable of lay observation; therefore, the Veteran is competent to report he experiences ringing in the ears. Additionally, the November 2018 VA audiologist diagnosed tinnitus. Thus, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the STRs show that the Veteran worked as a metal worker; therefore, noise exposure is conceded. Thus, the facts establish that the second element of a service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, as discussed above STRs do not show complaints, treatment, or diagnosis of an ear disability in service or years after the Veteran's discharge from active service. Additionally, a November 2018 audiologist provided a negative nexus opinion. The audiologist opined the Veteran's hearing was within normal limits at enlistment in October 1990. The audiologist noted there is no separation examination from active duty in 1991, but that a National Guard examination in May 1994 showed hearing still within normal limits per VA guidelines with no significant shift in thresholds noted when compared to the enlistment examination. The audiologist explained that per research by the Institute of Medicine (IOM, 2005), a permanent shift in hearing thresholds would be observed at the time of the event if acoustic trauma results from noise exposure. Therefore, IOM has determined that delayed onset threshold shifts are not a scientifically recognized consequence of acoustic trauma. The audiologist wrote the IOM report currently remains the most comprehensive review regarding effects of noise exposure in humans. The examiner explained that with no permanent decrease in hearing thresholds observed on examination almost three years after discharge from active duty, there is no objective evidence that acoustic trauma or noise injury occurred during active duty service as a result of any military noise exposure to account for the reported tinnitus. The Board affords the November 2018 VA medical opinion high probative value, as the audiologist reviewed the file, examined the Veteran, and provided an opinion, which included a rationale that was based on evidence in the file, medical principles, and medical literature. During the November 2018 VA examination, the Veteran stated he first began to notice tinnitus in the summer or fall of 1994. This time frame puts the earliest possible onset for tinnitus in 1994 which is approximately three years after discharge from active duty. There is also no competent or credible evidence within one year of service discharge upon which to find that tinnitus manifested to a compensable degree within one year following service discharge. Thus, the preponderance of the evidence is against tinnitus manifesting within one year after the date of separation from service; therefore, presumptive service connection for tinnitus based on a chronic disease is denied. While the Veteran has alleged that his tinnitus is related to service, he is not competent to directly link the tinnitus to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent evidence of a positive nexus between tinnitus and service upon which to weigh against the November 2018 VA audiologist's opinion. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a left knee disability, to include DJD. The Veteran testified that he injured his left knee during a period of ACDUTRA in 1993. He stated while running with some other soldiers, he heard his left knee pop, and he was sent to Ireland Army Hospital to be examined. After he was discharged from the National Guard, he always took Motrin and anti-inflammatories, and he assumed it was arthritis. He has not received VA treatment for his left knee. He testified that his records could not be found at Ireland, but another soldier treated at the same time was able to find his records, and the Veteran believes this soldier has a disability rating from this treatment. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a left knee disability. The reasons follow. As to evidence of a current disability, the August 2012 VA examination report shows that the Veteran was diagnosed with degenerative joint disease of the left knee. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the STRs do not show that the Veteran sustained a disease or injury to the left knee during service or during a period of ACDUTRA. The May 1994 RME documented a normal clinical evaluation of the lower extremities. The Physical Profile Serial Report showed a PULHES score of 1 for the lower extremities. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "L" stands for "lower extremities." Odiorne, 3 Vet. App. at 457 (1992). Thus, the Veteran's left lower extremity was assigned a 1, which denotes a high degree of physical fitness. On the May 1994 RMH, the Veteran marked "no" for a history of trick or locked knee, but marked "yes" for bone, joint, or other deformity. The examiner documented that the Veteran experienced occasional left knee pain. The Veteran also marked "no" for being treated by medical professionals within the previous five years for any other illness or injury. Thus, to the extent that the Veteran has reported an injury to the left knee that required hospitalization in 1993, the Board finds that the evidence does not support this allegation. For example, when asked on the May 1994 Report of Medical History if he had been a patient at a hospital, he marked, "Yes," and wrote that it was in February 1991 for an infected blister. In other words, he did not include a hospitalization that occurred in 1993 involving a left knee injury, which was more recent than the 1991 hospitalization. This leads the Board to believe that there was no hospitalization involving his left knee in 1993; otherwise, he would have documented it, as he had the wherewithal to document a hospitalization for an infected blister that occurred three years ago, but neglected to include a hospitalization that would have occurred within the past year that related to his knee. This is further supported by the fact that VA attempted to get the 1993 hospitalization records at least two times in October 2018 and May 2019, and none were found. Thus, the Board finds the preponderance of the evidence is against a left knee injury occurring during a period of ACDUTRA in 1993 that included a hospitalization. Further supporting this finding is that the Veteran initially attributed his left knee disability to a December 1990 cellulitis infection, which infection occurred during his period of active duty (and appears to be the February 1991 hospitalization referred to in the May 1994 Report of Medical History). For example, on the March 2010 VA Form 21-526 Veterans Application for Compensation or Pension, when the Veteran first filed the claim for service connection for the left knee disability, he wrote his left knee gives out at times when walking due to the cellulitis infection that occurred in basic training resulting in Beta Streptococcus Group G (also claimed to be gangrene). On an April 2010 VA Form 21-4138, Statement in Support of Claim, the Veteran wrote he was told by the attending physician in December 1990 that he had gangrene, and, ever since this infection, he has experienced recurrent joint pain in the left knee. He described his left knee buckling and giving out a few times when walking or running. He wrote he could "only assume" his joint pain is related to the cellulitis infection in his left foot because Streptococcus Group G is known to cause arthritis. He also wrote that gangrene is also known to cause chronic and long-term problems that affect the circulation of blood. The Board finds the Veteran's changing story regarding the origin of the left knee disability damages his overall credibility, as he initially claimed the left knee was related to the cellulitis he experienced in service, which involved his left foot/heel. In fact, he wrote in April 2010 that he could "only assume" that his joint pain was related to the cellulitis infection. If he had been hospitalized for a left knee injury in 1993 during a period of ACDUTRA, it would be reasonable to assume that he would have attributed the left knee disability to that incident or to both incidents if the 1993 hospitalization had occurred during a period of ACDUTRA. In other words, it would not make sense for the Veteran to believe that the only way he could have incurred the left knee disability was from a cellulitis infection if he had also sustained an injury during a period of ACDUTRA that required hospitalization. For these reasons, the Board finds that there was no disease or injury to the left knee during a period of active duty or ACDUTRA. Thus, insofar as the Veteran experienced an in-service disease or injury involving the left foot/heel, the facts establish that the second element of a service-connection claim is met; however, the preponderance of the evidence is against the Veteran experiencing a left knee disease or injury in service. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the August 2012 VA examiner provided a negative nexus opinion. The examiner opined that Beta Streptococcus Group G was eliminated from the Veteran's body several years ago in 1990, when the Veteran received intravenous antibiotics to resolve the spreading septic cellulitis in his body. The examiner went on to say the Veteran's DJD could easily be caused by age-related circumstances. The examiner added that the cellulitis from 1990 was a skin-related problem while the DJD is a bone process, and that they are two, different systems not related to each other. The Board affords the August 2012 VA medical opinion high probative value, as the examiner reviewed the file, examined the Veteran, and provided an opinion, which included a rationale that was based on evidence in the file and medical principles. This is affirmative evidence against a nexus between the current left knee disability and service. In an April 2010 VA Form 21-4138, the Veteran's wife stated she observed the Veteran with recurrent problems with joint pain. This lay statement does not discuss when the Veteran began experiencing joint pain or where it was located on his body. This statement does not establish a nexus between the Veteran's left knee disability and service. In July 2010, the Veteran submitted a medical study titled Bacteremia Caused by Group G Streptococci (GGS), Taiwan. The study documented that one of the major underlying illnesses in patients with GGS bacteremia was bone and joint disease. The study does not state that GGS causes bone and joint disease. This study does not establish a nexus between the left knee disability and service. In the April 2016 Notice of Disagreement, the Veteran stated he had several witnesses to his alleged 1993 in-service left knee injury, but he has not provided any lay statements from these people. Moreover, at this time, the Veteran stated another soldier was treated in 1993 at Ireland Army Hospital at the same time as him, and this soldier was unable to retrieve his records. In the January 2016 VA Form 21-4138, the Veteran named this person as A.H. However, the Veteran testified this soldier, presumably A.H., found his records from Ireland Army Hospital, and he thought the soldier received a disability rating from this injury. The Board has already explained why it finds there was no 1993 hospitalization during a period of ACDUTRA. As to presumptive service connection for a chronic disease (here, arthritis), the Veteran was diagnosed with minimal arthritic change with narrowing in the medial joint space in the left knee in October 2008. This would establish that arthritis of the left knee was first shown more than 15 years following discharge from active service and the alleged period of ACDUTRA and would not establish entitlement to service connection on a presumptive basis based on a chronic disease. Thus, the preponderance of the evidence is against arthritis manifesting to a compensable degree within one year following service discharge, and presumptive service connection is not warranted for the left knee disability. While the Veteran has alleged that his left knee disability is related to service, he is not competent to directly link the left knee disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent evidence of a positive nexus between the left knee disability and service upon which to weigh against the August 2012 VA opinion. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a left knee disability, as there is no in-service disease or injury and there is no competent evidence of a nexus between the post-service left knee disability and service. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.