LEFT KNEE CONDITION

PATRICK M. JOHNSON · 2022 · Case ID: 22049028

MIXED

Summary

The veteran, who served in the Army National Guard from 1991 to 1997, including active duty from April 1991 to August 1991, appeals the denial of service connection for bilateral hearing loss and the remand of claims for a lumbar spine condition and a left knee condition. The Board found that the veteran's bilateral hearing loss did not meet the VA's criteria for a disability, despite the veteran's lay contentions of hearing loss and ringing in the ears, which the Board found credible but lacking probative value compared to the VA audiological examinations. The Board noted that the private physician's report and the VA audiological evaluations did not establish a hearing loss disability for VA purposes. Service connection for tinnitus, however, was granted. The Board found the evidence to be in approximate balance, affording the veteran the benefit of the doubt, and concluded that the veteran's current tinnitus had onset during active service, supported by his credible statements of ringing since boot camp. The claims for a lumbar spine condition and a left knee condition were remanded due to inadequate VA examinations. The lumbar spine examination failed to adequately consider the veteran's lay statements and the potential secondary effects of his knee and pes planus disabilities. The left knee claim was remanded because the veteran clarified that both knees were affected, and the examiner did not provide a nexus opinion for the left knee.

Service Branch

ARMY NATIONAL GUARD

Special Benefit

NO SPECIAL BENEFIT

Docket No.

16-30 891

Full Decision Text

Citation Nr: 22049028
Decision Date: 08/29/22 Archive Date: 08/29/22

DOCKET NO. 16-30 891
DATE: August 29, 2022

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for a lumbar spine condition is remanded.

Entitlement to service connection for a left knee condition is remanded.

FINDINGS OF FACT

1. The Veteran has not had a bilateral hearing loss disability for VA purposes during the appeal period.

2. Resolving the benefit of doubt in favor of the Veteran, the Veteran's tinnitus had onset during active service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385.

2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Army National Guard from 1991 through 1997. This service included a period of uncharacterized active-duty service from April 1991 to August 1991.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2021, the Board remanded the Veteran's claims for further development. The Board also found the Veteran withdrew his hearing request.

The issues of entitlement to service connection for bilateral pes planus and a right knee disability were also remanded by the Board in November 2021. The Agency of Original Jurisdiction (AOJ) granted service connection for these conditions in a May 2022 rating decision. These issues, having been granted in full, are no longer for appellate review. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).

SERVICE CONNECTION

1. Service connection for bilateral hearing loss is denied.

Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999).

Hearing loss will be considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007).

In January 2014, a private physician stated that the Veteran had bilateral hearing loss and reported that the Veteran was exposed to hazardous noise during military service.

A private audiogram from January 2014 reported pure tone thresholds, in decibels, as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 10 5 X 10

LEFT 5 5 10 X 10

Speech audiometry revealed speech recognition of 100 percent in the right ear and 96 percent in the left ear. These results do not meet the criteria for a hearing loss disability for VA compensation purposes.

During an April 2022 audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 10 10 15 15

LEFT
, as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 10 5 X 10

LEFT 5 5 10 X 10

During an April 2022 audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 10 10 15 15

LEFT 15 10 10 15 25

Speech audiometry revealed speech recognition of 100 percent in the right ear and 100 percent in the left ear. These results do not meet the criteria for a hearing loss disability for VA compensation purposes.

Unfortunately, none of the competent evidence of record demonstrates a hearing loss disability for VA purposes during the period on appeal.

In a June 2022 statement, the Veteran stated he was unsure how the examination resulted in perfect hearing because he has ringing in both ears and has a hard time hearing out of his right ear.

The Board has considered the Veteran's statements about his reported left and right ear hearing loss. The Veteran is competent (qualified) to report on factual matters of which he had firsthand knowledge; and the Board finds that his reports concerning diminished auditory acuity (that is, observable levels of increasingly severe hearing loss) have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person is not competent to identify whether the severity of his hearing loss represents a disability as defined in 38 C.F.R. § 3.385, in the absence of specialized training, which in this case the Veteran has not established. As such, the Veteran's lay contentions lack probative value, particularly in comparison to the examination evidence noted above. See Jandreau v. Nicholson. The Board finds that the April 2022 VA examination report is the most probative evidence of record, because the examiner reviewed the claims file and provided a detailed rationale. Id.

The most fundamental requirement for any claim for service connection is proof of a current disability. In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the evidence discussed above establishes that the Veteran's hearing loss does not rise to the level of severity to be considered a hearing loss disability as defined for VA disability compensation purposes. In the absence of a current disability, the claim for bilateral hearing loss must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Service connection for tinnitus is granted.

The Veteran also contends that service connection for tinnitus is warranted. After considering the evidence of record, the Board agrees.

Affording the Veteran the benefit of doubt, the evidence is approximately balanced (nearly equal) in favor of finding the Veteran's current tinnitus had onset during active service. The Veteran provided competent and credible statements that he has experienced objectively observable symptoms of ringing in his ears since military service on active duty during boot camp and that the ringing has continued since service, thereby establishing a causal link (nexus) between his military service and his currently tinnitus disability. See April 2014 statement in support of claim; June 2022 correspondence.

Less probative weight is afforded to the May 2022 VA examination regarding tinnitus because it is based on inaccurate facts and does not provide a causal link opinion. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Therefore, service connection is warranted. 38 C.F.R. §§ 3.102, 3.303.

REASONS FOR REMAND

1. Service connection for a lumbar spine condition is remanded.

REASONS FOR REMAND

1. Service connection for a lumbar spine condition is remanded.

Despite the additional and regrettable delay, a remand is required because there was not substantial compliance with the Board's November 2021 remand directive to provide the Veteran an adequate VA examination. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds the rationale which accompanied the May 2022 VA examination for the Veteran's lumbar spine did not contain adequate reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner reasoned that there was no incident or injury during active-duty service to the lumbar spine that can be proven in the available service treatment records but did not take into consideration the Veteran's lay statements. Further, the Veteran has asserted that due to his knee disabilities and bilateral pes planus, his gait has been altered and this has contributed to his back disability. No secondary service connection opinion was obtained prior to the claim being recertified to the Board. Accordingly, a remand is required to obtain a new VA examination.

2. Service connection for a left knee condition is remanded.

According to the May 2022 VA examiner the Veteran decided to only pursue his right knee condition claim. Therefore, the examiner did not provide a causal link (nexus) opinion for the Veteran's left knee. However, in a June 2022 statement the Veteran clarified and also stated that both knees are "in a bad way." He stated that when one knee is hurting, he cannot put pressure on it, and he has to compensate with the left knee. Accordingly, a remand is required to obtain a new VA examination for the Veteran's left knee condition.

The matters are REMANDED for the following action:

1. Schedule an examination of the Veteran to determine the nature and etiology of any left knee disability. The examiner should review the claim file (including this remand) and note such review was conducted.

The examiner should identify any left knee disabilities present during the appeal period, to include osteoarthritis.

For each left knee disability diagnosed the examiner is as to respond to the following:

(a) is it approximately at least as likely as not that the disability was incurred in, or otherwise due to, any period of the Veteran's service, including Veteran's active-duty service, specifically by carrying 80-pound packs for 20 miles at a time.

(b) is it approximately at least as likely as not that the disability was caused by any service-connected disability?

(c) Is it approximately at least as likely as not that the disability was aggravated by any service-connected disability?

The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are credible.

A detailed rationale is required for all opinions provided. Separate opinions with separate rationales should be provided to address causation and aggravation.

2. Schedule the Veteran for an examination to determine the nature and etiology of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted.

The examiner should identify any lumbar spine disabilities present during the appeal period.

For each lumbar spine disability diagnosed, the examiner should opine as to the following:

(b) is it approximately at least as likely as not that the disability was caused by any service-connected disability?

(c) Is it approximately at least as likely as not that the disability was aggravated by any service-connected disability?

A detailed rationale is required for all opinions provided. Separate opinions with separate rationales should be provided to address causation and aggravation.

Patrick M. Johnson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Williams, 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.

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