Citation Nr: 23040407 Decision Date: 07/24/23 Archive Date: 07/24/23 DOCKET NO. 18-53 144A DATE: July 24, 2023 ORDER 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 bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's right knee disability began during active service or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran's left knee disability began during active service or is otherwise related to an in-service injury or disease. 3. The evidence of record persuasively weighs against finding that the Veteran's bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. 4. The evidence of record persuasively weighs against finding that the Veteran's tinnitus began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for left knee arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 4. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of that hearing has been associated with the claims file. The Board remanded the above claim in April 2022. The matter again is before the Board. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 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). 1. Entitlement to service connection for a right knee disability is denied. 2. Entitlement to service connection for a left knee disability is denied. The Veteran contends that his right and left knee disabilities are due to crawling in service. VA treatment records indicate the Veteran had been reporting knee pain as early as March 2015. Further, an August 2022 VA examination confirms a diagnosis of right and left knee disabilities. The RO stated in a March 2023 SSOC that the Veteran has a bilateral knee disability, specifically arthritis. The Board declines to disturb the favorable findings, which are supported by evidence in the claims file. Initially, the medical evidence, including service treatment records (STRs), does not show manifestations of right and left knee disabilities during service or within one year after the date of separation from service. Consequently, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. § 3.309(a). Regarding direct service connection, in the February 2021 hearing, the Veteran testified that he crawled down valleys while on his knees and spend a lot of time on his knees while in service. Further he stated he would stay on his knees and crawl while not wearing knee protection. The Veteran has identified a specific in-service event or incidence. Thus, an in-service event is established. The question for the Board is whether the Veteran has a current disability that was incurred in service, otherwise was caused by service, or was caused or aggravated beyond its natural progress by a service-connected disability. In a September 2022 VA medical opinion, the examiner opined the Veteran's Knee disabilities were likely cause by arthritis and the Veteran's ongoing aging process. Further, the Veteran was another afforded an October 2022 VA examination, where the examiner the knee disabilities were less likely than not (less than 50% probability) incurred in or aggravated by the claimed in-service injury, event, or illness. The October 2022 examiner gave a similar opinion as the September 2022 VA medical opinion. Thus, these opinions lacked review of the entire records. After the April 2022 Board remand, the Veteran was afforded a new VA medical opinion April 2023 and was given an opportunity to submit further evidence. In June 2022 the Veteran submitted private medical records from a private orthopedic doctor. The private medical records do mention the knee disabilities, but the records are silent on whether the knee disabilities were related to service. In the April 2023 VA medical opinion, the examiner still concluded the knee disabilities were less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or aggravated by the claimed in-service injury, event, or illness. The examiner still mentioned how the STRs were silent on complaints and treatments of the Veteran knees during service. The examiner still reasoned that the Veteran knee disabilities were likely cause by wear and tear during his post discharge years due to the natural onset of aging. As a result, the Veteran is competent to observe his right left knee symptoms. However, when weighing the Veteran's opinion against the VA examination reports and medical records, the Board finds that the VA examinations reports and medical records, documenting the nature, extent, and severity of his right and left knee disabilities, to be the most probative evidence of record, as the examiner reviewed the claims file, made repeated references to pertinent past records and statements, and provided a detailed examination of the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this instance, the Board finds that the competent and credible evidence of record is not in approximate balance. Instead, the evidence persuasively weights against Veteran's left knee and right knee disabilities. Accordingly, service connection for left knee and right knee disabilities is denied. 3. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that he has bilateral hearing loss as a result of acoustic trauma in service. For VA purposes, impaired hearing is considered disabling 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. When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a disability for VA purposes at that time, he or she may nevertheless establish service connection for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id., at 157. Threshold shifts of 15 decibels or more, at any single frequency 1000, 2000, 3000, or 4000 Hertz is considered a significant shift. Id., at 164. The November 2016 rating decision favorably found that the Veteran was diagnosed with a disability. Therefore, the first element of service connection is met. The Veteran contends that his hearing loss is related to his in-service noise exposure. In the February 2021 hearing transcript, the Veteran testified he was a combat engineer and was exposed to loud weapons fire in service. He stated he never wore hearing protection and had no exposure to loud noise following service. He reports the only hazardous noise exposure in his life was during service. The Board notes the Veteran indicated his hearing loss and tinnitus The Veteran's service personnel records (SPRs) show he was assigned to a unit that serviced in Vietnam. Further, in the September 2022 addendum opinion, the examiner noted the Veteran served in the Army as a combat engineer, which has a high probability of hazardous noise exposure. As such, the evidence establishes that the Veteran was exposed to hazardous noise during service based on his military occupational specialty (MOS). See 38 C.F.R. § 3.385. Therefore, the issue before the Board is whether the current hearing loss is etiologically related to service. Neither the April 1968 examination nor the May 1970 separation examination show whether hearing tests were conducted in ASA or ISO-ANSI standard. VA policy requires that when the standard is unknown in tests conducted from January 1, 1967, to December 31, 1970, then the results must be considered under both standards. The Veteran was afforded an October 2021 examination. The examiner concluded the Veteran's hearing loss was less likely than not (less than 50% probability) caused by or a result of an event in military service. The examiner reasoned there was no significant threshold shift in either ear between audiometries obtained at the April 1968 examination and those obtained at the separation examination conducted May 1970. The Veteran reported onset of hearing loss occurring approximately 10-15 years ago from the date of the October 2021 examination. In this examination it was not clear that the VA examiner in October 2016 considered whether ASA or ISO-ANSI were used during service. Thus, the issue was remanded for an addendum opinion. The following are the conversions as considered from a September 2022 addendum opinion. The April 1968 examination shows the following results, in decibels, with those initially recorded assumed to be ASA and the ISO-ANSI conversion in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) 0 (10) -5 (5) 5 (10) LEFT -5 (10) 0 (10) 0 (10) -5 (5) 0(5) The May 1970 examination shows the following, with the initially recorded results assumed to be ASA and the ISO-ANSI conversion of those results in parenthesis HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 5 (15) NA 0(5) LEFT 0 (15) 0 (10) 0 (10) NA 5(10) In the September 2022 addendum opinion, He indicated the comparison of the Veteran's entry and separation examinations reveals no significant threshold shift. These results do not correspond to hearing loss for VA purposes during service. Further the examiner opined the Veteran's hearing loss is not related to service. The examiner also cited an Institute of Medicine Study (IOM) (2006) which supports that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such exposure. The examiner noted the IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss is "unlikely." Thus, he concluded the Veteran's current hearing loss was not caused by his in-service noise exposure and it has a post-service etiology. There is no other evidence in the Veteran's STRs that any complaints or diagnoses. Further the VA treatment records notes the hearing loss but is silent on hearing loss occurring a year after service. The Board finds this opinion probative. It is well-reasoned and obviously based on a review of the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that it outweighs the Veteran's statements in favor of service connection, as he has not been shown to have the training or expertise to competently opine on the cause of his hearing loss. The VA examiner investigated his theory and found it less likely. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, this probative evidence against the Veteran's hearing loss was not related to service on a direct basis; as such, direct service connection is not warranted. In sum, the probative evidence weighs against the Veteran, and is not otherwise etiologically related to an in-service injury or disease; therefore, the claim for service connection for bilateral hearing loss is denied. 4. Entitlement to service connection for tinnitus is denied. The Veteran contends that he is entitled to service connection for tinnitus as it is a result of military noise exposure in service. The question before the Board is whether the Veteran's in-service noise exposure caused his current disability of tinnitus. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, and the Veteran asserts that he experienced noise exposure during service, the evidence persuasively weighs against a finding that the Veteran's diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. There is no evidence in the Veteran's STRs that any complaints or diagnoses of tinnitus. Further the VA treatment records note tinnitus but are silent on symptoms occurring a year after service. The Veteran was afforded an October 2016 VA examination for tinnitus. The examiner opined tinnitus is as likely as not a symptom associated with hearing loss and was less likely than not a result of military service. The Veteran further reported he has no idea when the tinnitus began. In the February 2021 hearing transcript, the Veteran reported his tinnitus began sometime after service. The Veteran was afforded a September 2022 addendum opinion for tinnitus. The examiner opined the tinnitus and hearing loss coexists and has many similar causes. However, the examiner further stated that one condition causes the other. The examiner noted the Veteran's October 2016 examination and the February 2021 hearing comments about when he believed the disability began. The examiner concluded that tinnitus is less likely than not a result of an event in military service. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran sincerely believes his tinnitus is related to his active service. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of the inner ear. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For these reasons, the Board finds that the evidence persuasively weighs against a finding that the Veteran's tinnitus first manifested during or is causally related to service. As such, entitlement to service connection for tinnitus is not warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.