Citation Nr: 1648495	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  09-40 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

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


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

G. Slovick, Counsel





INTRODUCTION

The Veteran served on active duty from September 1961 to September 1963.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

This case was previously before the Board in May 2013, December 2014, and February 2016 and was remanded for additional development.  


FINDINGS OF FACT

1.  The evidence is in relative equipoise as to whether the Veteran's hearing loss is related to service.

2.  The preponderance of the evidence weighs against a finding that a bilateral knee disability is related to service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2016).

2.  The criteria for service connection for a bilateral knee disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has certain duties to notify and assist a veteran in the substantiation of a claim. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b).  

VA complied with the duty to notify in a May 2008 letter, prior to the rating decision now on appeal, and additional notice letters throughout the appeals period. As such, VA has complied with its duty to notify.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159 (c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159 (c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159 (c)(4).

In this case, VA has obtained all records of treatment reported by the Veteran, including service treatment records and records of VA and private treatment.  The Veteran was also provided VA examinations and medical opinions addressing the nature and etiology of the disabilities on appeal in September 2008, January 2010, April 2012, June 2013, April 2015 and May 2015.  The Board also observes that the Veteran waived any further development of his claims in July 2016.

The Board finds that VA has complied with the February 2016 remand orders of the Board.  The Veteran was provided VA examinations and medical opinions were obtained in March and May 2016.  Moreover, inasmuch as the Board finds the May 2016 findings inadequate, the Veteran is not prejudiced by such as that claim is granted in full below.  Following the development requested, a supplemental statement of the case (SSOC) was issued in July 2016.  Therefore, VA has complied with the remand orders of the Board. 

For the above reasons, the Board finds that VA has complied with the duties to notify and assist the Veteran.

II.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Service connection generally requires credible and competent evidence showing: (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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253   (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).  In addition, certain chronic diseases, including organic diseases of the nervous system and arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303 (b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470   (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 

Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the 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, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In order to grant a claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the claimant prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Bilateral Hearing Loss

For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 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, and 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 (2016).

The United States Court of Appeals for Veterans Claims (Court) had indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley Brown, 5 Vet. App. 155, 157 (1993).

In Hensley, the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and a current hearing loss disability.  Id.  The medical evidence of record reveals that there is a current diagnosis of a hearing disability.  VA examination reports demonstrate that the Veteran has sensorineural hearing loss according to the definition of impaired hearing under 38 C.F.R. § 3.385 (2016).

The Veteran contends that he experienced acoustic trauma during his military service that he claims has caused bilateral hearing loss.  The Veteran's DD-214 notes that his military occupational specialty was listed as clerk; however the Veteran contends that he worked only briefly in that capacity.  The Veteran has explained that due to his inability to type, he was quickly transferred to artillery and maintenance where he was exposed to guns and explosives.  The Veteran's service treatment records are silent as to any complaints of or treatment for hearing loss, however, decreased hearing acuity is shown in the Veteran's audiological reports.  

While the Veteran does have a current disability, September 2008, April 2012 and May 2016 VA examiners provided negative nexus opinions with regard to whether the Veteran's current disability is related to his active duty service.  The September 2008 VA examiner stated that given the entrance and exit audiometrics provided and the Veteran's history of noise exposure, the current hearing loss is not the result of his military service as a clerk.  See September 2008 VA Audiological Examination Report.  The April 2012 VA examiner found that given the normal hearing on separation, the Veteran's current hearing loss was not related to his military noise exposure.  See April 2012 Audiological Examination Report.  Most recently, in a May 2016 addendum opinion, the VA examiner noted that the Veteran's hearing was normal at separation, the Veteran denied combat action and worked in carpentry for forty-two years and the examiner therefore found that hearing loss was less likely as not due to in-service noise exposure.  

In contrast, the Veteran asserts that he experienced a gradual decrease in hearing loss since his time in service.  See January 2010 VA Audiological examination report.  

The Board acknowledges that VA audiological examiners provided opinions tending to weigh against the Veteran's claim.  However, as these examinations are found to be incomplete for varied reasons described in prior remands, and as the May 2016 VA examiner's findings are afforded limited probative value in that they did not discuss the decreased auditory findings in service, the examiner's findings are afforded less probative value than they otherwise might be.  The Board notes that the Veteran's service treatment records indicate decreased hearing thresholds, the Veteran has reported that he observed decreased hearing since service, and the Veteran is currently diagnosed with hearing loss.  

Given that the Veteran's records indicate that hearing loss may have begun in service, the Veteran's reports of continued observation of hearing loss since that time and a finding of a current hearing loss disability, when weighed against the findings of the VA examiners, the evidence of record weighing for and against the Veteran's claim is in equipoise.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Thus, service connection is warranted.



Bilateral Knee Disability

The Veteran contends that he injured his knees jumping in and out of trucks and going up and down stairs as part of job in maintenance during his service.  He further argues that he never reported any injury because he had intended to make the military his career and did not want to hinder his chances for advancement.  Service treatment records are silent as to any treatment for or complaints of a knee disability.

The record includes July 2007 VA medical center treatment records in which the Veteran complained of bilateral knee pain for many years.  The Veteran is shown to state that he had never seen a primary physician, he stated that knee pain began when he was in the military.  

In a June 2013 VA examination, the examiner opined that the Veteran's degenerative joint disease of the knees was less likely than not incurred in or caused by the Veteran's claimed in-service injury in that x-rays demonstrated typical diffuse age-related degeneration.  As noted above, the issue was remanded for a new examination so that a VA examiner could address the Veteran's contention that his knee disability was due to the "wear and tear" of his military duties.

A new VA examination was provided in April 2015.  During his examination, the Veteran stated that after leaving the service he was involved in labor, doing carpentry and performed assistant supervisory duties for various buildings and schools for 42 years.  The Veteran reported that he experienced problems with his knees in service and did not experience symptoms when he got out.  The Veteran stated that he retired in 2001 due to his knees.  The Veteran stated that he felt his symptoms were due to climbing up and down ladders and explained he did not know he could get service connection for his knees.  He stated that since he left the service his knees hurt.  The examiner noted that entrance and separation physicals were negative for knee complaints.  

The examiner noted that there was no objective evidence indicating etiology of a knee condition other than that of age-related degenerative disease.  The examiner explained that examination and x-rays dated in April 2015 demonstrated age-related degenerative disease and that the Veteran's knee condition did not develop until over forty years after separation and was not shown within a year of service.  The examiner stated that there was no evidence of chronic or on-going medical condition associated with and/or aggravated by Veteran's military service.

In a March 2016 addendum to that opinion, a new VA examiner reviewed the claims file and concluded that the Veteran's bilateral knee disorder was less likely as not causally or etiologically related to military service to include wear and tear caused by military duties such as climbing ladders and jumping off trucks.  

The examiner stated that to determine that climbing ladders and jumping off trucks for likely less than two years would lead to significant trauma would be mere speculation.  The examiner further noted that it seemed that the Veteran was able to do manual work for a while until early 2000 when he retired.  The examiner stated that the Veteran's current degenerative joint disease seemed most likely due to the normal aging process and genetic predisposition and that there was no evidence available to consider that military service aggravated the Veteran's current arthritis beyond its natural process.

The examiner explained that the association between aging and osteoarthritis was very strong and cited medical evidence which demonstrated that age was related to arthritis and may be related to systematic changes with aging.  

The evidence is against service connection. 

Initially, a knee disability is not shown in service or for years thereafter.  Therefore arthritis may not be presumed to be due to service.  38 C.F.R. §§ 3.307, 3.309.  While the Veteran noted in July 2007 that he had had knee pain for "many years" and that his pain began in service, the onset of any knee disability is unclear.  

Further, while the Veteran is competent to report his observed knee pain, the medical evidence against a finding that the Veteran's current knee disability is related to service weighs against the Veteran's lay assertion that his present knee arthritis is related to his service.

While the Board is cognizant of the Veteran's contentions that his knee disability is related to service, he is not shown to have any medical expertise and is not competent to attribute his knee disability to service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2011) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  

Here, medical experts have examined the Veteran and his medical records and determined that the type of knee disability the Veteran has is more likely due to his age than service and that the Veteran's service would not have resulted in a disability like the one he has at present.  This is based upon an examination of the Veteran and his records as well as medical research.  The Board finds the medical nexus evidence is more probative than the Veteran's assertion that his knee disability is related to service.  In this case, the evidence shows a current bilateral knee disability but weighs against a finding that the Veteran's current disability is related to his service.

Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102.  The service connection claim must therefore be denied.


ORDER

Service connection for hearing loss is granted.

Service connection for a bilateral knee disability is denied.




____________________________________________
M.H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s