Citation Nr: 22014032 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-56 566 DATE: March 11, 2022 ORDER Service connection for a left knee disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence is persuasively against a finding that a chronic left knee disability, to include arthritis, had its onset in or is otherwise related to service. CONCLUSION OF LAW The criteria for an award of service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1971 to November 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In September 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Service connection for a left knee disability is denied. The Veteran seeks to establish service connection for a left knee disability. He contends that he has continuously suffered from such a disability ever since service, due to an injury he sustained in the military. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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. In the present case, there is no dispute that the Veteran has a current left knee disability. Among other things, a July 2017 VA examination report clearly reflects a diagnosis of mild to moderate degenerative arthritic changes throughout the left knee. Nor is there any dispute that the Veteran was treated for a left knee problem during service. A service treatment record from January 1975 clearly reflects that he participated in physical therapy related to the knee. As to the nexus, or link, between the Veteran's current disability and service, the Board notes that when he was examined for service separation in August 1975, he explicitly denied having any physical defects. On examination, his lower extremities were found to be normal. The earliest documented post-service complaint of a disability of the left knee was in a private medical assessment in May 2015. He complained of pain and swelling. In July 2017, the Veteran underwent an in-person VA examination of the left knee. The examiner reviewed the claims file and rendered an unfavorable nexus opinion. In support of that conclusion, the examiner noted that the knee strains that occurred in January 1975 were not severe enough to result in the development of the subsequent degenerative arthritis that was shown presently. The examiner also noted the 35-year gap between the initial injury and the recurrence of left knee pain in May 2015. Inasmuch as the examiner's opinion was based on an accurate understanding of the facts, and articulated reasons for the conclusion reached, the Board finds the opinion probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In August 2021, a private physician noted the Veteran's prior military service, as well as the Veteran's report that he suffered knee injuries during service. The physician also noted that the Veteran suffered from advanced bilateral knee arthritis. However, the physician did not in any way attribute the Veteran's current knee disabilities to his military service or otherwise offer an opinion with respect to nexus. During his September 2021 testimony before the Board, the Veteran reiterated his belief that his current left knee disability was attributable to service. The Board has considered his statements in this regard. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of a knee disability as it relates to injury or episodes of treatment decades earlier. In addition, to the extent that he is now alleging continuity of symptoms since service, his current statements lack credibility because they are inconsistent with what he reported at the time of his separation from service, when he expressly denied having any physical defects. That is not to say that he is willfully manufacturing facts; only that his current recollection of events is at odds with what he reported previously. In any event, the Board finds the July 2017 VA examiner's opinion the most probative piece of evidence on the matter. There are no contrary medical opinions of record. In light of the foregoing, the Board must conclude that the evidence is persuasively against the claim. The evidence does not establish that a chronic left knee disability, including arthritis, was present in service, or that arthritis of the left knee manifested to a compensable degree within the applicable presumptive period. Continuity of symptomatology is not established, and the weight of the competent, credible, and probative evidence is against a finding that a chronic left knee disability, to include arthritis, had its onset in or is otherwise related to an in-service injury or disease. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a left knee disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal of this issue is denied. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim and to afford him every possible consideration. The Veteran seeks to establish service connection for bilateral hearing loss. He contends that he has a current hearing loss disability that can be attributed to his exposure to noise during service. The Veteran has a bilateral hearing loss disability by VA standards. See 38 C.F.R. § 3.385; July 2017 VA audiology examination. He testified to the fact that was an artillery range gun chief, as well as an artillery cannoneer. The Veteran's service treatment records (STRs) contain a November 1971 enlistment examination report setting out the following audiometric results (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 5 LEFT 10 5 5 15 5 The report of the Veteran's August 1975 separation examination also contains the results of audiometric testing, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 - 15 LEFT 20 15 15 - 10 The Veteran was afforded a VA audiology examination in July 2017. The examiner found that it was unlikely that the Veteran's bilateral hearing loss was related to service, in pertinent part, because his hearing was within normal limits at service entrance and separation. In so doing, however, the examiner did not discuss the medical significance, if any, of the fact that no audiometric data were recorded at 3000 Hertz for either ear when the Veteran was examined for service separation. Furthermore, the examiner did not substantively comment on the significance of the upward threshold shifts reflected in the audiometric data during service, other than to check a box on the examination form to the effect that there was no "permanent positive threshold shift . . . greater than normal measurement variability . . .." In September 2021, the Veteran submitted an August 2021 report prepared by a private examiner. The examiner noted "gradual [hearing] loss/military consistent w[ith] past noise exposure." Unfortunately, the report contains only data and conclusions, with no clear indication that the physician reviewed the Veteran's service records. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, it is insufficient to support an award of service connection. Because neither of the medical opinions addressing the etiology of the Veteran's hearing loss is entirely adequate for purposes of adjudication, additional development is required. See, e.g., Barr, 21 Vet. App. at 311. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran's hearing loss in July 2017. The examiner should be asked to review the record and prepare a supplemental report addressing the fact that no audiometric data were recorded at 3000 Hertz for either ear when the Veteran was examined for service entry and separation. The examiner should explain how that evidence impacts her prior opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hearing loss had its onset during, or is otherwise related to, service. The examiner should specifically discuss whether, in the absence of audiometric data at 3000 Hertz, it is possible to determine whether the Veteran's hearing was normal at that frequency at the time of separation, and whether it is possible to determine whether any threshold shifts occurred at that frequency during service. The examiner should also discuss the upward threshold shifts noted at other frequencies, when comparing data from testing at service entrance to that obtained at service separation. If the July 2017 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.