Citation Nr: 1743979	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  09-42 339	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

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

2. Entitlement to service connection for a bilateral foot condition.

3. Entitlement to service connection for a bilateral hearing loss

4. Entitlement to service connection for tinnitus



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife
ATTORNEY FOR THE BOARD

S. Freeman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1969 to September 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

These claims were previously remanded by the Board in August 2014 and November 2016 for additional development.

The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2016.  A transcript of that hearing is associated with the claims file.


FINDINGS OF FACT

1. A chronic bilateral knee disability was not present in service, arthritis of the knees was not manifest to a compensable degree within one year of service separation, and the most probative evidence shows that the Veteran's current knee disability, to include seronegative rheumatoid arthritis, left knee osteoarthritis and right patellar tendonitis, is not causally related to his active service or any incident therein.

2. A chronic bilateral foot disability was not present in service, arthritis of the feet was not manifest to a compensable degree within one year of service separation, and the most probative evidence shows that the Veteran's current bilateral foot disability, hallux valgus, right foot osteoarthritis, bilateral heel spurs and right foot hammer toe, is not causally related to his active service or any incident therein.
3. The Veteran's currently diagnosed bilateral hearing loss was not present in service, was not manifested to a compensable disabling degree within the first year after discharge from service, and is not shown to be etiologically related to his active military service, to include in-service noise exposure.

4. The Veteran's currently diagnosed tinnitus was not present in service, was not manifested to a compensable disabling degree within the first year after discharge from service, and is not shown to be etiologically related to his active military service, to include in-service noise exposure.


CONCLUSIONS OF LAW

1. The criteria for service connection for a bilateral foot disability, to include seronegative rheumatoid arthritis, left knee osteoarthritis and right patellar tendonitis, have not been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.30, 3.309 (2016).

2. The criteria for service connection for a bilateral foot disability, to include, hallux valgus, right foot osteoarthritis, bilateral; heel spurs and right foot hammer toe, have not been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

3. Bilateral hearing loss was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016).

4. Tinnitus was not incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016).

As to VA's duty to assist the Veteran with his service connection claim, the Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran.  See generally  38 C.F.R. § 3.159(c).  The record in this case includes service treatment records, VA treatment records, private treatment records, Social Security Administration (SSA) records and the Veteran's statements regarding this matter.

Additionally, VA examinations were conducted in January 2014 and March 2017 in connection with the claims decided herein.  A review of the VA examinations reflects that they are adequate for the purpose of adjudicating the Veteran's claims.  Specifically, the examination reports reflect diagnoses and opinions which are congruent with the other evidence of record and were rendered following a thorough review of the relevant records, including treatment records.  All offered opinions are accompanied by a complete rationale.  38 C.F.R. § 3.159 (c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).


Compliance with Board Remand

As noted in the Introduction, the Board most recently remanded this case in November 2016.  The November 2016 Board remand directed the AOJ to obtain all pertinent VA medical treatment records, including private treatment records from St. Dominic Hospital, and then readjudicate the claim in light of all the evidence of record, and issue a SSOC, if warranted.

The Board finds that the AOJ complied with the remand directives as the AOJ obtained 2014 VA audiogram, afforded the Veteran a VA examination for his bilateral foot, knee and hearing loss and readjudicated the issues on appeal in a June 2017 SSOC.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall where the Board's remand instructions were substantially complied with).


Legal Criteria-Service Connection

The Veteran is currently seeking service connection for a bilateral knee disability, foot disability, bilateral hearing loss and tinnitus.

Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).  In general, in order to prevail on the issue of service connection the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Bilateral Knee and Foot Disabilities

The Veteran's service records are silent with regard to treatment of a knee and foot disabilities during active military service.  His September 1971 discharge Report of Medical Examination, found no clinical abnormalities in regard to the Veteran's bilateral knee and foot.

The Veteran contends that he is entitled to service connection for a bilateral knee and foot disabilities.  Having reviewed all of the relevant evidence of record, the Board concludes that the diagnosed disabilities did not manifest during, or as a result of, active military service.

The Veteran contends that his bilateral knee and foot disabilities stem from his training while in the military.  He specifically contends that his training consisted of crawling on rock, and further contended, at times it was raining and snowing when they went outside to train. He further contends he was the chief chef in the military and he stood for nearly seventeen hours a day preparing meals.  A former military colleague issued a written statement, in which he stated the Veteran complained of knees and foot pains while in the military.  The Veteran contends he cannot stand or sit for long due to pain in his knees and feet, and said he has trouble getting up when he gets down on his knees, and needs help standing.

The Veteran was diagnosed with seronegative rheumatoid arthritis in 1999, which according to the examiner can cause pain in multiple joints.  A March 2017 VA examination diagnosed the Veteran of right knee tendonitis and bilateral osteoarthritis, right foot hammer toes, right foot degenerative arthritis, bilateral hallux valgus, and bilateral heel spurs. 

During the March 2017 examination, the Veteran reported constant pain in both anterior knees and dorsal both feet.  He stated he soaked his feet in warm Clorox water at night.  He denies swelling and denies knee or feet surgery.  He occasionally uses an OTC cane when the knees or feet hurt.  His initial range of motion was normal.  Evidence of pain with weight bearing was recorded.  There was evidence of objective evidence of localized tenderness or pain on palpation of the joint.  The Veteran was able to perform repetitive use testing with at least three repetitions.  No additional functional loss or range of motion after three repetitions was noted.  His bilateral knees and foot evaluation showed normal strength.  No ankylosis and no history of recurrent subluxation were reported.  No history of lateral instability.  Physical examination of the knees was essentially unremarkable.

VA treatment records dated in October 2014 showed a prominent plantar calcanal enthesophyte and a tiny a chilles insertion site enthesophyte.  Additional calcifications were recorded in the hind foot plantar soft tissues.  Calcaneal pitch is within normal limits.  A bunion deformity of the great toe and mild degenerative findings of the great toe MTP joint was shown.  There are flexion deformities of the second through fifth toes.  The bilateral knees indicated no significant joint space narrowing.  No joint effusion was shown.  No osseous abnormality or fracture was shown.  There is normal bony mineralization.  No atherosclerotic calcifications are noted.  No radiopaque foreign body or soft tissue gas collections.  No significant soft tissue swelling.  Very mild spurring was recorded along the left knee articular margins of the patella and the tibia spines.  No joint effusion and no focal osseous abnormality or fracture was recorded.

Knee x-ray in January 2009 showed no findings of arthritis.  Probable small right knee joint effusion was recorded.  No fracture, dislocation, or radiopaque foreign body.  Soft tissues were reportedly unremarkable.  Likewise, November 2004 x-ray of both knees demonstrates osseous structures intact without evidence of fracture dislocation.  No significant joint space narrowing identified.  No significant tissue abnormalities are noted.

By the way of statements and testimony, the Veteran reiterated that he has current bilateral knee and foot disabilities and such are related to his military service.  He indicated during the August 2016 Board hearing that although he suffered from these conditions in service, he did not report it because he wanted honorable discharge, and not medical discharge.

The Board finds that service connection for bilateral knees and foot disabilities cannot be established, as the STRs are silent for any complaint or treatment for these disabilities.  Furthermore, at the time of the Veteran's separation from service, the Veteran's knees and his overall lower extremity disability picture were within normal limits.  In addition, the March 2017 VA examiner opined that a diagnosis of seronegative rheumatoid arthritis, heel spurs, bunions and right foot hammer toes and right great toe arthritis, as well as bilateral hallux valgus, are common in the general population.  Therefore, the examiner opined that it is less likely than not the Veteran's current bilateral knees and foot disabilities were incurred in service.

The Veteran, as a lay person, is competent to report on medical observations which can be perceived by his senses to include bilateral knee and foot pain.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007.  He is not, however, competent to address medical matters which are complex in nature, such as the etiology of chondromalacia patella of the knees or foot as a consequence of an in-service injury.  Id.  Therefore, while his statements regarding in-service events are deemed credible, the preponderance of the evidence is against a finding of nexus.

VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine is not applicable with regard to the Veteran's bilateral knee and foot disabilities, because the preponderance of the evidence is against the Veteran's claims.  38 U.S.C.A. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


Bilateral Hearing Loss and Tinnitus Disabilities

The Veteran contends that he currently has a bilateral hearing loss and tinnitus disabilities that are related to an in-service injury.  Specifically, he has reported that he tripped over a manhole and fell, and the rest of his troops fell over him, which then caused a rifle butt to hit him over the ear.  See, e.g., August 2016 Board hearing transcript.
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, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In written statements of record, the Veteran has claimed entitlement to service connection for bilateral hearing loss and tinnitus, asserting that his in-service injury is a direct cause of his hearing loss and tinnitus disabilities.  He has reported having progressive problems with his ear and hearing ringing in his ear since 1970.  He testified that not long after the incident he noticed he started putting the television on loud and his wife would get mad with him, and say, "it looks like you are going deaf or something."

The Veteran testified that his military occupational specialty (MOS) was a chef.  See, August 2016 Board hearing transcript.

Post-service VA treatment notes dated in January 2014 reflected complaints and findings of bilateral hearing loss and tinnitus.  A March 2017 VA audiology examination report noted high frequency hearing loss, with tinnitus.  The VA audiologist noted that the Veteran's bilateral hearing loss is less likely than not related to his active period of military service.  The audiologist opined that the Veteran showed normal bilateral hearing ability by VA standards on both military entrance and separation hearing tests with no significant threshold increase during service.  The Veteran reported constant, bilateral tinnitus for the last 20 to 30 years, which could often become severe.  He detailed difficulty hearing, noting particular difficulty in hearing his wife and the television.  The Veteran also reported his tinnitus can be irritating and that it sometimes prevents him from sleeping.  The March 2017 audiologist opined that the Veteran's tinnitus is less likely than not related to his active period of military service.

In a March 2017 VA audio examination report, the Veteran reported frequent difficulty understanding speech in conversations and on television.  The Veteran also reported constant tinnitus that had been ongoing for many years but does not recall exactly when it started.  Pure tone thresholds, in decibels, were reported as follows:

On the authorized audiological evaluation in March 2017, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
50
85
90
LEFT
25
35
25
35
50

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 92 percent in the left ear.  Accordingly, a bilateral hearing loss disability for VA standards was shown.  38 C.F.R. § 3.385.

After review of the claims file and examining the Veteran, the examiner diagnosed bilateral sensorineural hearing loss.  He opined that the Veteran's bilateral hearing loss and tinnitus were not at least as likely as not (50% probability or greater) caused by or a result of an event in military service.  In the cited rationale, the examiner highlighted that the Veteran showed normal bilateral hearing ability by VA standards on both military entrance and separation hearing tests with no significant threshold increases during service.  The examiner highlighted that the Veteran had reported a gradual onset of his bilateral hearing loss over the years and had first sought evaluation for his hearing approximately 10 years after his active military service.  Although the examiner noted that the Veteran's hearing loss and tinnitus disabilities are unrelated to his active military service, the examiner nonetheless opined that the Veteran's tinnitus was at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.

After a thorough review of the evidence of record, the Board concludes that service connection for bilateral hearing loss and tinnitus are not warranted.  As an initial matter, there is no factual basis in the record that bilateral hearing loss or tinnitus was incurred during service, or that bilateral hearing loss was manifested as a chronic disease within a year after his discharge from service in 1971.

Post-service medical evidence of record first showed findings of bilateral hearing loss and tinnitus in 2000, decades after the Veteran's separation from active service in 1971.  Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of a disorder).

Post-service medical evidence of record showed current diagnoses of bilateral hearing loss and tinnitus.  In addition, evidence of record does not reflect that the Veteran was exposed to loud noises during service.  Moreover, the record does not include any probative evidence of a causal relationship between the Veteran's bilateral hearing loss and tinnitus and his active military service, to include conceded in-service injury.  In fact, in the March 2017 VA examination report discussed at length above, the examiner specifically opined that the Veteran's hearing loss and tinnitus were less likely as not related to service.  The examiner provided a complete rationale for the stated opinions, citing to a detailed review of the evidence of record, in person examination of the Veteran, and clearly acknowledging the Veteran's asserted in-service injury.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding that the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).  Significantly, the Veteran has not presented, identified, or alluded to the existence of any medical opinion that directly contradicts the conclusions reached by the March 2017VA examiner.

The only other evidence of record which relates the Veteran's claimed bilateral hearing loss and tinnitus to his active military service are his own statements.  These statements are competent evidence as to observable symptomatology, including decreased hearing acuity and ringing in the ears.  See Barr, 21 Vet. App. at 303, 307.  However, lay statements that the Veteran's present bilateral hearing loss and tinnitus were as a result of service, to include conceded in-service  injury to his ear, draw medical conclusions, which the Veteran is not qualified to make.  Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's bilateral hearing loss and tinnitus falls outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377.  Moreover, the VA examiner considered the lay assertions of record when providing the aforementioned VA medical opinion in March 2017.

Therefore, the criteria to establish entitlement to service connection for bilateral hearing loss and tinnitus have not been established, either through medical or probative lay evidence.  In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims of entitlement to service connection for bilateral hearing loss and tinnitus, that doctrine is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

Entitlement to bilateral knee disability is denied

Entitlement to service connection bilateral foot disability is denied

Entitlement to service connection for bilateral hearing loss is denied

Entitlement to service connection for tinnitus is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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