HEARING LOSS

TIMOTHY BERRYMAN · 2022 · Case ID: 22055323

DENIED

Summary

The veteran, who served on active duty in the Army from January 2003 to December 2003, including service in Iraq and Kuwait, appeals the denial of service connection for bilateral hearing loss, lumbar spine disability, bilateral shoulder disability, and bilateral knee disability. The Board found that the veteran's service treatment records (STRs) were unavailable through no fault of his own, and the RO made efforts to obtain them and schedule VA examinations. However, the veteran failed to respond to requests for permission to obtain private treatment records and did not report for scheduled VA examinations, which the Board found to be without good cause. For bilateral hearing loss, the Board noted presumed military noise exposure but found the audiological findings from a 2016 VA examination did not meet VA criteria for disability, denying the claim. For lumbar spine disability, the Board found the lay statement from a fellow servicemember lacked probative value due to unsigned and uncorroborated content, and that the evidence did not show a current lumbar spine disability, denying the claim. For bilateral shoulder disability, the Board noted the veteran's own reports of pain and a 2019 diagnosis of bilateral rotator cuff tendonitis, but found the evidence weighed against service connection due to lack of in-service complaints, treatment, or injury documentation, and inconsistent statements from the veteran. For bilateral knee disability, the Board found clear and unmistakable evidence that the veteran's left knee disability pre-existed service due to a 1997 surgery, and the evidence did not show aggravation beyond natural progression. For the right knee, the Board found no evidence of disability beginning in service or related to service, assigning greater probative value to VA treatment records showing onset years after service and lack of in-service complaints. All claims were denied.

Rationale

Weight of competent evidence against finding bilateral hearing loss; Audiological findings did not meet VA criteria; Veteran's statements regarding hearing loss have diminished probative value

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

16-13 105

Full Decision Text

Citation Nr: 22055323
Decision Date: 09/28/22 Archive Date: 09/28/22

DOCKET NO. 16-13 105
DATE: September 28, 2022

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for a lumbar spine disability is denied.

Service connection for a bilateral shoulder disability is denied.

Service connection for a bilateral knee disability is denied.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran has a bilateral hearing loss disability as defined by VA.

2. The evidence of record persuasively weighs against finding that the Veteran has a lumbar spine disability.

3. The evidence of record persuasively weighs against finding that the Veteran has a bilateral shoulder disability that 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 has a chronic right knee disability that began during active service or is otherwise related to an in-service injury or disease.

5. The evidence of record persuasively weighs against finding that the Veteran's left knee disability, which clearly and unmistakably pre-existed service, was permanently worsened beyond its natural progression during active service; and any additional disability began in service or is otherwise etiologically related to in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active from January 2003 to December 2003 with service in Iraq and Kuwait from April 2003 to November 2003. He also served in the US Army Reserve for the period of July 2001 to July 2007, both prior and subsequent to his active-duty service.

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

In October 2020, the Board remanded the appeal for additional evidentiary development to obtain outstanding VA and private treatment records, service treatment records (STRs), and VA examinations of the lumbar spine, shoulders, and knees.

An October 2020 letter notified the Veteran that the facility nearest him would schedule examinations in connection with his claim; and should he fail to report for an examination without good cause, the claim shall be rated based on the evidence of record, or even denied. See Subsequent Development Letter (October 15, 2020). The Veteran was also asked to provide or give VA permission to obtain private treatment records. See Subsequent Development Letter (October 19, 2020). Military personnel records from the Reserves were associated with the record; however, VA was unable to obtain the Veteran's service treatment records (STRs) and notified the Veteran in January 2021. See DPRIS Response (November 2020), VA 21-3101 Request for Information (January 2021), Final Attempt Letter (January 2021). In November 2020, attempts were made by phone and through mail to schedule the Veteran for VA examinations without success. See CAPRI (November 2020). In February 2022, Veterans Evaluation Services informed the RO that the Veteran had "failed to report to at least one scheduled exam and [it had] been unable to re-establish contact despite multiple attempts." See Email Correspondence (February 2022). In March 2022, VA examination requests were cancelled due to inability to contact the Veteran. See Exam Request (March 2022).

The Board finds that there has been substantial compliance with the Board's prior remand directives. Stegall v. West
Letter (January 2021). In November 2020, attempts were made by phone and through mail to schedule the Veteran for VA examinations without success. See CAPRI (November 2020). In February 2022, Veterans Evaluation Services informed the RO that the Veteran had "failed to report to at least one scheduled exam and [it had] been unable to re-establish contact despite multiple attempts." See Email Correspondence (February 2022). In March 2022, VA examination requests were cancelled due to inability to contact the Veteran. See Exam Request (March 2022).

The Board finds that there has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The RO obtained the Veteran's military personnel records, associated VA treatment records with the file, sought the Veteran's permission to obtain private treatment records, and attempted to schedule the Veteran for VA examinations. The Veteran failed to respond to attempts to obtain permission to procure private treatment records. He also did not respond to attempts to schedule VA examinations and offered no explanation as to why he was unable to do so. No mail was returned to VA. Under 38 C.F.R. § 3.655, the failure to report for a VA examination without good cause will cause VA to evaluate an original service connection claim, such as this one, based upon the other evidence of record. The Board finds the Veteran's failure to schedule VA examinations was without good cause. Neither the Veteran nor his attorney has identified any specific error in support of the appeal.

The Veteran's service treatment records (STRs) are missing through no fault of his own. The record reflects multiple searches have been conducted to locate the Veteran's STRs through appropriate sources. The RO notified the Veteran of the negative outcome of these efforts in January 2021 and provided him the opportunity to provide documents that could substitute for STRs. See Final Attempt Letter (January 2021). The RO provided examples of the types of documents that could support the claim in lieu of STRs (such as buddy statements, medical evidence from private physicians by who he had been treated post-service). There has been no response to this request. Where STRs are missing, as here, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).

Gulf War Presumptions

For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness), a medically unexplained chronic multi-symptom illness (MUCMI) (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome), or any diagnosed illness specified by the Secretary. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 68 Fed. Reg. 34541 (June 10, 2003); see also Stewart v. Wilkie, 30 Vet. App. 383, 387 (2018).

The illness must become manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2026. Id. Further, by history, physical examination, and/or laboratory tests, the disability cannot be attributed to any known clinical diagnosis. Id. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. Id. There must be a minimum of a 6-month period of chronicity. Id.

Additionally, there must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia theater of operations during the Persian Gulf War. Id. If signs or symptoms have been medically attributed to a diagnosed rather than undiagnosed illness, the Persian Gulf War presumption of service connection does not apply. 38 C.F.R. § 3.317; 63 Fed. Reg. 56,703 (1998).

A February 2019 VA Gulf War examination opined the Veteran had no "diagnosed illnesses for which no etiology was established" and no "undiagn
. There must be a minimum of a 6-month period of chronicity. Id.

A February 2019 VA Gulf War examination opined the Veteran had no "diagnosed illnesses for which no etiology was established" and no "undiagnosed illness" or "diagnosed medically unexplained chronic multisymptom illness." See C&P Exam (February 2019). The Veteran's musculoskeletal disabilities have been medically attributed to a diagnosed rather than undiagnosed illness. Therefore, they are not MUCMIs as defined in 38 C.F.R. § 3.317; and presumptive service connection is not warranted. See Stewart, 30 Vet. App. 383. However, service connection may still be warranted on a direct basis.

Service Connection

Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing such service, was aggravated therein. 38 C.F.R. § 3.303. "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 1363, 1366 (Fed. Cir. 2009).

Bilateral Hearing Loss

The Veteran asserted that he had bilateral hearing loss in both ears due to military noise exposure. He reported being involved in an IED explosion with loss of consciousness and decreased hearing during his active service. See C&P Exam (April 2016). As such, the Veteran is presumed to have military noise exposure.

For 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, 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 Hertz 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.

It is noted that the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). The U.S. Court of Appeals for Veterans Claims (Court) has established that the threshold for normal is from 0 to 20 decibels. Id.

As an initial matter, the Veteran had presumed military noise exposure. However, the record does not reflect that the Veteran has a hearing loss disability for VA purposes as defined at 38 C.F.R. § 3.385. Therefore, the Board concludes that the weight of the competent evidence is against finding that the Veteran has bilateral hearing loss. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As noted above, the Veteran's STRs are unavailable. The Veteran was released from active duty in 2003 and initially claimed service connection for hearing loss on his April 2012 VA disability claim
presumed military noise exposure. However, the record does not reflect that the Veteran has a hearing loss disability for VA purposes as defined at 38 C.F.R. § 3.385. Therefore, the Board concludes that the weight of the competent evidence is against finding that the Veteran has bilateral hearing loss. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As noted above, the Veteran's STRs are unavailable. The Veteran was released from active duty in 2003 and initially claimed service connection for hearing loss on his April 2012 VA disability claim. However, an April 2016 VA hearing loss examination showed findings that did not meet VA's criteria for a hearing loss disability. The Veteran's pure tone thresholds, in decibels, were as follows:

April 2016 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz AVG

Right 10 dB 10 dB 10 dB 10 dB 10 dB 10

Left 25 dB 20 dB 20 dB 10 dB 15 dB 16

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left ear. See C&P Exam (April 2016).

Based on these results, the Veteran does not have a current hearing loss disability as defined by VA regulations. While the Veteran is competent to report hearing loss, the audiological findings needed to establish the presence of disability for VA purposes under 38 C.F.R. § 3.385 are not susceptible to lay observation. It requires specialized medical testing by a trained professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements as to having hearing loss have no probative value.

Absent competent, credible evidence of a disability during or approximate to the filing of the claim, there can be no valid claim. See McClain, 21 Vet. App. 319, see also Romanowsky, 26 Vet. App. 289.

Accordingly, the criteria for service connection for bilateral hearing loss have not been met, and the claim is denied.

Preliminary Finding

The Veteran seeks service connection for disability of his lumbar spine, shoulders, and knees, which he asserted were due to a fall from a truck during his active service. The Veteran submitted a March 2019 lay statement which tends to corroborate the Veteran's account of falling from a vehicle in service. See Correspondence (March 2019). The statement is attributed to Specialist J.B. who served with the Veteran in Iraq beginning June 2003. While the submitted document is not blatantly or inherently incredible on its face, the lay statement is unsigned, contains no attestation as to the truth of its contents, and includes no identifying or contact information for Specialist J.B. (e.g., phone number, address, ID number). As such, the Board finds the lay statement to be of no probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

Lumbar Spine Disability

Regarding a lumbar spine disability, the question for the Board is whether the Veteran has a current lumbar spine disability that began during service or is related to an in-service injury or disease.

The Board concludes that the Veteran does not have a lumbar spine disability. Romanowsky, 26 Vet. App. 289, 294; McClain, 21 Vet. App. 319, 321.

As noted above, the Veteran was released from active duty in 2003; and STRs are unavailable through no fault of his own. A lumbar spine disability is first shown on the Veteran's April 2012 claim for service connection. See VA 21-526 Veterans Application for Compensation or Pension (April 2012). A September 2013 VA treatment note documents the Veteran's reports of backaches. See CAPRI (May 2022). In November 2014, the Veteran reported that his knees and hips "hurts all the time" due to his military background. Examination demonstrated pain at the lateral hips and forward flexion of the back to 180 degrees (maximum range) without problem. Id. VA treatment records reflect no further complaints of or treatment or diagnosis of a back condition. The Veteran did not respond to attempts to schedule a VA examination for his back and has provided no private treatment records or medical opinions in support of his claim.

The
526 Veterans Application for Compensation or Pension (April 2012). A September 2013 VA treatment note documents the Veteran's reports of backaches. See CAPRI (May 2022). In November 2014, the Veteran reported that his knees and hips "hurts all the time" due to his military background. Examination demonstrated pain at the lateral hips and forward flexion of the back to 180 degrees (maximum range) without problem. Id. VA treatment records reflect no further complaints of or treatment or diagnosis of a back condition. The Veteran did not respond to attempts to schedule a VA examination for his back and has provided no private treatment records or medical opinions in support of his claim.

The Board acknowledges the Veteran's report that he has symptoms such as back. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). However, in this case, neither the lay nor the medical evidence shows any functional loss or impairment in earning capacity due to his reported symptoms. Id.

It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997).

The evidence of record persuasively weighs against finding that the Veteran has a current lumbar spine disability.

Accordingly, the criteria for service e connection for a lumbar spine disability have not been met, and the claim is denied.

Bilateral Shoulder Disability

Regarding bilateral shoulder disability, the Board concludes that, while the Veteran has bilateral rotator cuff tendonitis, the most persuasive evidence weighs against finding that the Veteran has a bilateral shoulder disability that began in service or is otherwise etiologically related to an in-service injury or disease. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

The Veteran was released from active duty in 2003, and his STRs are unavailable. Though the Veteran sought service connection for "shoulder condition" on his April 2012 application for compensation, bilateral shoulder disability is first documented in February 2019. On examination, the Veteran was diagnosed with bilateral rotator cuff tendonitis though medical records contain no diagnostic testing. See C&P Exam (February 2019). Objectively, there was abnormal range of motion with pain causing functional loss, positive Hawkins' Impingement Test, and functional impact described as difficulty lifting overhead and throwing things. Id. VA treatment records reflect no complaints of or treatment or diagnosis for bilateral shoulder disability. See generally, CAPRI. The Veteran did not respond to attempts to schedule a VA examination for his shoulders and has provided no private treatment records or medical opinions in support of his claim.

The evidence of record does not show that the Veteran has a bilateral shoulder disability that began in service or is otherwise etiologically related to in-service injury or disease.

The Board accepts that the Veteran is competent to report his symptoms and treatment. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, he is not competent to opine that his bilateral shoulder disability is etiologically related to any in-service injury given that the etiology is not susceptible to lay observation and is a complex medical matter that requires knowledge of musculoskeletal system, including abnormal pathology of the shoulder and its causes that the Veteran is not shown to have. See Jandreau, 492 F.3d 1372, 1377, 1377 n.4. Also, the Board finds that, to the extent that the Veteran suggests that bilateral shoulder symptoms or disability began in service, the Board finds this is less than credible. Notwithstanding that STRs are missing through no fault of the Veteran, he indicated that he did not seek medical care for this condition in service. The Veteran, when first reporting limitations caused by shoulder disability, made no mention of any in-service shoulder injury or symptoms. See VA 21-4138 Statement in Support of Claim (April 2012). It defies belief that the Veteran would not have mentioned the nature of the injury and symptoms if they had begun in service and continued after service when he initially presented for shoulder pain. See generally Curry v. Brown, 7 Vet. App. 59, 68 (1994). Second, a bilateral shoulder disability is first diagnosed in February 2019, roughly seven years after the Veteran filed his application for compensation. Third, there are no documented complaints
not seek medical care for this condition in service. The Veteran, when first reporting limitations caused by shoulder disability, made no mention of any in-service shoulder injury or symptoms. See VA 21-4138 Statement in Support of Claim (April 2012). It defies belief that the Veteran would not have mentioned the nature of the injury and symptoms if they had begun in service and continued after service when he initially presented for shoulder pain. See generally Curry v. Brown, 7 Vet. App. 59, 68 (1994). Second, a bilateral shoulder disability is first diagnosed in February 2019, roughly seven years after the Veteran filed his application for compensation. Third, there are no documented complaints of symptoms prior to 2013 and no diagnosed shoulder disability or report of an injury in service until 2019, which is incongruous with onset of symptoms in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet App. 67, 73 (1997). Therefore, in view of the above taken together, the Board finds that the Veteran's statements have diminished probative value.

Consequently, the Board assigns greater probative value to the VA treatment records which reflect no complaints, treatment, or diagnosis for bilateral shoulder disability, coupled with the absence of any credible indication of bilateral shoulder disability in or since service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Although the Veteran's STRs are missing, the Veteran has not provided alternative favorable evidence to weigh in this matter apart from his own assertions and the lay statement addressed above. VA's duty to assist in the development of a claim is not a one-way street, and claimants cannot passively wait for it in those circumstances where they may or should have information that is essential to establishing their claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). Here, the Veteran has not provided any credible corroborating or substitute evidence to support the assertion that he has a bilateral shoulder disability that began in service or is otherwise related to service.

On balance the weight of the evidence is against the claim.

Accordingly, criteria for service connection for a bilateral shoulder disability have not been met, and the claim is denied.

Bilateral Knee Disability

The Veteran seeks service connection for bilateral knee condition due to Gulf War and burn pit exposure. See C&P Exam (February 2019). Additionally, he asserted that he injured his knees in service when he fell from a truck in June 2003, but he did not see a medic. Id. The record reflects that the Veteran had left knee ACL reconstructive surgery in 1997 prior to service.

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Cotant v. West, 17 Vet. App. 116, 131 (2003).

A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b).

The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, as STRs are unavailable, the Board is unable to ascertain whether the condition was "noted at entrance into service." However, the Veteran's reports to physicians reflect he had reconstructive surgery on the left knee in 1997, six years before his active-duty service. Accordingly, the Board finds that left knee disability pre-existed military service.

Regarding the right knee, the evidence of record does not show that the Veteran has a right knee disability that began in service or is otherwise etiologically related to in-service injury or disease.

With regard to the left knee, the Board concludes that the evidence weighs against finding that the Veteran's pre-existing left knee disability was permanently aggravated beyond its natural progression as a result of service or that any additional disability began in service or is otherwise etiologically related to in-service injury or disease. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306.

The Veteran was released from active duty in 2003. A knee disability was first documented in the record on the Veteran's April 2012 application for compensation. See VA 21-526 Veterans Application for Compensation or Pension (April 2012). As noted above, STRs are unavailable, and no medical records prior to March 2013 are associated with the record. The Veteran established care at VA in September 2013 and indicated he worked as a coalminer and had knee pain at the end of each shift. He reported bilateral knee pain had been ongoing for three to four years (beginning roughly 2009). See CAPRI at 42 (May 2022). A past medical history of left knee anterior cruciate ligament (ACL) surgery in 1997 was noted. In November 2014, he reports hurting all the time in his knees and hips that stems from his military background. November 2014 and February 2019 bilateral knee x-rays reflect a prior left ACL reconstruction with no fractures or other acute osseous abnormalities identified. Id.

A February 2019 VA knee and lower leg examination diagnosed bilateral patellofemoral pain syndrome. See C&P Exam (February 2019). On examination, limitation of motion in the bilateral knees with pain caused functional loss; and the functional impact was described as difficulty walking, running, standing, and climbing steps and ladders. The Veteran had no loss of strength, atrophy, effusion, ankylosis, instability, or meniscal conditions. The concurrent medical opinion noted that the Institute of Medicine's "Update of Health Effects of Serving in the Gulf War" found "insufficient/inadequate evidence of an association between deployment to the Gulf War and musculoskeletal system diseases."

The evidence does not reflect that right knee disability or additional left knee disability had onset in active duty. Furthermore, the evidence does not reflect that left knee disability underwent an increase in severity during active duty. The Veteran reported no ongoing symptoms in either knee in or since service. Additionally, as the Veteran reported no increase in left knee symptoms in service, the available evidence reflects that there was not a permanent worsening of the condition beyond its natural progression due to service. There is clear and unmistakable evidence (the Veteran's own reports) to rebut the presumption of aggravation. 38 U.S.C. § 1153.

The Board accepts that
evidence of an association between deployment to the Gulf War and musculoskeletal system diseases."

The Board accepts that the Veteran is competent to report his symptoms. See Layno, 6 Vet. App. 465 (1994); see also Falzone, 8 Vet. App. 398, 403. However, he is not competent to opine that his bilateral knee disability is etiologically related to any in-service injury given that the etiology is not susceptible to lay observation and is a complex medical matter that requires knowledge of musculoskeletal system, including abnormal pathology of the knee and its causes. This is beyond the ken of a layperson. See Jandreau, 492 F.3d 1372, 1377, 1377 n.4. Also, the Board finds that, to the extent that the Veteran suggests that he has had bilateral knee symptoms or disability in and since service, the Board finds this is less than credible. Notwithstanding that STRs are missing through no fault of the Veteran, he reported that he did not seek medical care for any in-service injury. The Veteran, when first reporting history of symptoms involving the knees, made no mention of any in-service knee injury or symptoms. See CAPRI (June 2015). It defies belief that the Veteran would not have mentioned the nature of the injury and symptoms if they had begun in service and continued after service when he initially presented for knee problems. See generally Curry, 7 Vet. App. 59, 68. Second, the first documented treatment for bilateral knee symptoms in 2013 reflects a history of onset three or four years prior, which is incongruous with onset of symptoms in service. Third, there are no documented complaints of symptoms prior to 2013 and no report of an injury in service until 2019, roughly 7 years after the Veteran filed his application for compensation. See Buchanan, 451 F.3d 1331, 1337); Rucker, 10 Vet App. 67, 73. Therefore, in view of the above taken together, the Board finds that the Veteran's statements have diminished probative value.

Consequently, the Board assigns greater probative value to the VA treatment records dated in 2013 showing onset of right knee symptoms years after service, coupled with the absence of any credible indication of right knee disability in or since service. See Prejean, 13 Vet. App. 444, 448-9; Nieves-Rodriguez, 22 Vet. App. 295.

Although the Veteran's STRs are missing, the Veteran has not provided alternative favorable evidence to weigh in this matter apart from his own assertions and the lay statement addressed above. VA's duty to assist in the development of a claim is not a one-way street, and claimants cannot passively wait for it in those circumstances where they may or should have information that is essential to establishing their claim. Wood, 1 Vet. App. 190. Here, the Veteran has not provided any credible corroborating evidence or substitute evidence to support the assertion that he has a chronic right knee disability that began in service or is otherwise related to service.

On balance, based on the foregoing, the weight of the evidence is against the claims.

Accordingly, the criteria for service connection for a bilateral knee disability have not been met, and the claim is denied.

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Edwards

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.

Analyze in VA Law Explorer