Citation Nr: 1736679	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO. 16-27 192	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial compensable rating for bilateral hearing loss.

2. Entitlement to service connection for a bilateral knee disability.

3. Entitlement to service connection for bronchitis, to include as due to asbestos. 


REPRESENTATION

Appellant represented by:	Cheryl R. King, Agent


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran had active service from Jan 1959 to June 1962.

This matter comes before the Board of Veterans' Appeals (Board) from August 2013 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Houston, Texas.

In June 2017, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file.

The case was remanded in May 2017 in order to conduct the above-mentioned hearing. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. 

The issue of entitlement to an initial compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDINGS OF FACT

1. The Veteran's bilateral knee disorder was not incurred in service nor is it otherwise related to active service.

2. The Veteran's bronchitis is not etiologically related to his active service.


CONCLUSIONS OF LAW

1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).

2. The criteria for service connection for bronchitis have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to notify and assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.327 (2016).

The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In several letters of record, the Veteran was informed of the type of evidence needed to develop his claims and what the VA would do to assist the Veteran obtain the necessary evidence. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All necessary assistance to obtain evidence has been provided. The Veteran's service treatment and personnel records, pertinent post-service medical records, VA examination reports, personal statements, and the June 2017 hearing transcript have been added to the case file. There is no indication of any additional relevant evidence that has not been obtained.

As to the bilateral knee claim, there is no probative evidence suggesting the claimed disorder is related to service. Rather, only the Veteran's general conclusory statement that his claimed disability is related to service is of record, which is insufficient to entitle a veteran to a medical examination under § 5103A (d) (2) (B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (observing that "[s]ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case"). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

VA has satisfied its duty to notify and assist and the Board may proceed with appellate review of the service connection claims.

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.A. §§ 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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 




A. Bilateral knee disorder

The Veteran's September 1958 pre-induction report of medical history indicated he did not have a "trick" or locked knee or any other bone, joint or other deformity. His pre-induction medical examination report indicated "normal" lower extremities, as did his June 1962 separation examination report. There is an entry in March 1959 for a sore on the Veteran's left leg that required drainage; otherwise, there is no indication of any complaints, diagnoses or treatments for a knee disorder affecting either knee during service.

These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

In April 2007, the Veteran reported to a private orthopedic specialist that he had pain in his left knee over the past several years. He did not recall any specific injury. The Veteran was diagnosed with a torn medial meniscus and chondromalacia in his left knee, and underwent a partial medial meniscectomy and debridement in May 2007. June 2012 private treatment records indicate the Veteran's knees showed signs of degenerative joint disease (DJD), with DJD worse on the left than the right.

The preponderance of the evidence is against entitlement to service connection for a bilateral knee disorder. The evidence does not show an in-service injury or event to the Veteran's knees. In addition, there is no probative medical evidence linking the Veteran's bilateral knee disorder to service. The only evidence linking the Veteran's current bilateral knee disorder to his service is the Veteran's own testimony. Chondromalacia and degenerative joint disease of the knees require specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for a bilateral knee disorder is denied.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

B. Bronchitis (shortness of breath)

The Veteran was diagnosed with bronchitis at the June 2013 VA medical examination. In February 2014, the Veteran reported nasal congestion with blood-streaked mucus. He was assessed with allergic rhinitis and prescribed medication. In March 2014, a respiratory examination indicated the Veteran's lungs were clear with oxygen saturation of room air (in liters) at 96 percent.

The Veteran reported that as a refrigeration mechanic onboard a naval vessel, he worked with equipment that was insulated in asbestos. His service treatment records indicate he was diagnosed with the common cold in April and May of 1959, but otherwise show no complaints, diagnoses, or treatments for any respiratory disorders. His June 1962 separation examination report indicated "normal" lungs and chest. Reiterating, these records are highly probative as to the Veteran's physical condition prior to his discharge from active service. Rucker, above.

At the June 2013 VA medical examination, the Veteran reported a daily morning cough for the last 20 years. He reported he had not been diagnosed with a lung disorder, to include pulmonary asbestosis, prior to the examination, and that he did not use inhalers or bronchodilators. He reported he smoked one to two packs of cigarettes daily between ages 18 and 34, but that he quit smoking over 30 years ago. 

The examiner diagnosed the Veteran with chronic bronchitis, with "mildly decreased breath sounds in both lungs." The examiner also noted the Veteran's chest x-ray indicated his lungs were clear with no acute cardiopulmonary disease, and reported "no findings indicating pulmonary asbestosis." The examiner opined the Veteran's bronchitis was less likely than not incurred in or caused by the claimed in-service exposure to asbestos. The examiner noted that "smoking is the major risk factor in developing chronic bronchitis." In addition, he noted "no objective clinical evidence of pulmonary asbestosis." 

The preponderance of the evidence is against entitlement to service connection for bronchitis. There is no probative medical evidence linking the Veteran's current bronchitis to his active service. The only evidence linking the Veteran's respiratory disability to service is his own testimony. As noted above, the Veteran is not competent to offer a nexus opinion on medically-complex questions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The June 2013 VA examiner's opinion is probative as to the diagnosis and causation of bronchitis and its relation to service. The claim for service connection is denied. 

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

Entitlement to service connection for a bilateral knee disorder is denied.

Entitlement to service connection for bronchitis is denied.


REMAND

The Veteran testified at his June 2017 hearing that his hearing has worsened during the course of his pending appeal for an initial compensable rating. The Board requires a new audiological examination to determine the current severity of the Veteran's bilateral impaired hearing.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain any outstanding VA medical records pertaining to the Veteran's impaired hearing and associate them with the claims file.

2. Schedule the Veteran for an appropriate VA examination to determine the severity of his bilateral impaired hearing in accordance with the applicable rating criteria and to determine the resultant functional effects, including on his day-to-day activities and employment. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All diagnostic testing and evaluation needed to make this determination should be performed, and all clinical findings reported in detail.

Specifically, the results of the audiological examination should state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz; should provide the puretone threshold average; and should also state the results of the word recognition test, in percentages, using the Maryland CNC test. The VA examiner, in addition to dictating objective test results, should fully describe the functional effects caused by the Veteran's bilateral hearing loss. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report.

THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT.

3. Then, review the VA examiner's report to ensure that he or she adequately responded to the above instructions, including providing an adequate explanation in support of any requested opinions. If the report is deficient in this regard, return the case to the VA examiner for further review and discussion.

4. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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