EYE IMPAIRMENT OF MUSCLES OF

JONATHAN B. KRAMER · 2026 · Case ID: A26035484

MIXED

Summary

The Veteran served in the Marines from December 1985 to March 1991, including service in the Persian Gulf era. The Veteran appeals the denial of service connection for a left eye disability, bilateral hearing loss, and right and left knee disabilities, and seeks an increased rating for a left lower eyelid scar. The Board granted service connection for the left lower eyelid scar at 10 percent. For the left eye disability, the Board found the evidence weighed against a service connection, denying the claim. Regarding the right and left knee disabilities, the Board found the evidence weighed against a service connection, denying both claims. For bilateral hearing loss, the Board found the evidence did not meet the criteria for service connection, denying the claim. The case is remanded for further development regarding the low back disability, as pre-decisional duty to assist errors were identified. The Veteran's service treatment records were silent for back complaints, but later VA treatment records showed complaints of back pain dating back to 1989, with a history of propelling in the Marines and landing on his back. The Board noted the Veteran's continued treatment for chronic low back pain and the findings of disc herniations and facet arthropathy on imaging studies.

Rationale

Evidence weighed against service connection; Criteria for compensable rating not met

Service Branch

MARINES

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200814-103538

Full Decision Text

Citation Nr: A26035484
Decision Date: 04/16/26 Archive Date: 04/16/26

DOCKET NO. 200814-103538
DATE: April 16, 2026

ORDER

Entitlement to a compensable rating for a left eye disability is denied.

Entitlement to a 10 percent rating, but no higher, for a left lower eyelid scar is granted.

New and relevant evidence has been received to readjudicate the claim for entitlement to service connection for a low back disability.

New and relevant evidence has been received to readjudicate the claim for entitlement to service connection for a right knee disability.

New and relevant evidence has been received to readjudicate the claim for entitlement to service connection for a left knee disability.

Entitlement to service connection for a right knee disability is denied.

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a low back disability is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran's left eye disability has resulted in incapacitating episodes or visual impairment due to the diagnosed disability.

2. Resolving reasonable doubt in favor of the Veteran, the Board finds his left lower eyelid scar has a surface contour that is elevated or depressed on palpation.

3. Following issuance of a March 2017 rating decision, new evidence to include lay statements and treatment records were added to the claims file, which are relevant because they tend to prove or disprove a matter at issue in the claim.

4. Following issuance of a March 2017 rating decision, new evidence to include lay statements and treatment records were added to the claims file, which are relevant because they tend to prove or disprove a matter at issue in the claim.

5. Following issuance of a March 2017 rating decision, new evidence to include lay statements and treatment records were added to the claims file, which are relevant because they tend to prove or disprove a matter at issue in the claim.

6. The evidence of record persuasively weighs against finding the Veteran's right knee disability is related to service.

7. The evidence of record persuasively weighs against finding the Veteran's left knee disability is related to service.

8. The Veteran does not have hearing loss for VA purposes.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 0 percent disabling for a left eye disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.75-4.78, 4.79, DC 6009.

2. The criteria for a disability rating of 10 percent, but no higher, for a left lower eyelid scar have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.118, DC 7800.

3. The criteria for readjudication of the claim of entitlement to service connection for a low back disability are met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a)(a).

4. The criteria for readjudication of the claim of entitlement to service connection for a right knee disability are met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a)(a).

5. The criteria for readjudication of the claim of entitlement to service connection for a left knee disability are met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a)(a).

6. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

7. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

8. The criteria for entitlement to service connection for bilateral (or unilateral) hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107;
38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

7. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

8. The criteria for entitlement to service connection for bilateral (or unilateral) hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1985 to December 1989, and from January 1991 to March 1991.

These appeals are being processed under the modernized review system, commonly referred to as the "AMA," as established by the Veterans Appeals Improvement and Modernization Act of 2017. 115 Pub. L. No. 55, 131 Stat. 1105.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2019 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ).

The Veteran timely initiated this appeal to the Board by submitting an August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and elected the Hearing docket.

In October 2024, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing. A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran changed representation after the Board hearing. By letter dated February 17, 2026, the Veteran's new representative was advised of this appeal and provided an opportunity to submit argument.

In view of the above, the Board may only consider the evidence of record at the time of the AOJ's issuance of the decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

Evidence was added to the claims file during a period of time when new evidence was not allowed, to include VA examinations and VA treatment records. The Board has not considered such evidence in this decision due to the AMA evidentiary restrictions outlined above. The appellant may file a supplemental claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included along with this decision.

Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past
4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Entitlement to a compensable rating for a left eye disability.

The Veteran seeks an increased, or compensable, rating for his left eye disability. See October 2024 Board Hearing transcript.

By way of procedural background, a September 2019 rating decision granted service connection for a left eye condition and assigned a 0 percent, or noncompensable, evaluation effective June 11, 2019. As the rating decision granting service connection is on appeal, this claim is one for an initial rating with the period on review beginning June 11, 2019.

The Veteran is presently rated under Diagnostic Code (DC) 6009 (unhealed eye injury including orbital trauma), which is rated under the General Rating Formula for Diseases of the Eye. See 38 C.F.R. § 4.79.

In order to warrant a 10 percent rating under DC 6009, there must be documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months; for a 20 percent rating there must be documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months; for a 40 percent rating there must be documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months; and for a 60 percent rating, there must be documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions

The General Rating Formula for Diseases of the Eye instructs to evaluate based on either visual impairment due to a particular condition, or on incapacitating episodes, whichever results in a higher evaluation. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091 control. Of note, a refractive error is not a disease or injury for VA purposes. See 38 C.F.R. § 4.9.

While a noncompensable rating is not enumerated under the General Rating Formula, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31.

Turning to the evidence, the Veteran was afforded an in person VA examination in August 2019 reporting a fractured left orbit due to trauma in service which was later repaired with no current symptoms. He was diagnosed with a trauma/hemorrhage and a left lower lid eye scar. Visual acuity was 20/20 or better for distance (corrected and uncorrected) and for corrected near (reading), while uncorrected near distance was 20/50 bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision. Pupil diameter was measured as 4 millimeters bilaterally, round and reactive to light, with no afferent pupillary defect present. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye.

The VA examination was negative for corneal irregularity that
a trauma/hemorrhage and a left lower lid eye scar. Visual acuity was 20/20 or better for distance (corrected and uncorrected) and for corrected near (reading), while uncorrected near distance was 20/50 bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision. Pupil diameter was measured as 4 millimeters bilaterally, round and reactive to light, with no afferent pupillary defect present. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye.

The VA examination was negative for corneal irregularity that resulted in severe irregular astigmatism, and negative for diplopia. Tonometry was performed with equal pressure bilaterally, measured at 16 using the Goldmann applanation. The slit lamp and external eye exam were abnormal on the left, due to the Veteran's scar from repair. Conjunctiva/sclera was normal on examination bilaterally, as was the cornea, anterior chamber, iris, and lens. Internal eye examination (fundus) was also normal bilaterally to include the optic disc, macula, vessels, vitreous and periphery. The Veteran did not have documented visual field defects, an external eye condition, a lacrimal system condition, a cornea/conjunctiva condition, glaucoma, uveal tract condition, lens condition, retina, macula or vitreous condition, neuro-ophthalmic condition, or an ocular neoplasm condition.

The VA examiner specified there was no decrease in visual acuity or other visual impairment due to the diagnosed hemorrhage inclusive of orbital trauma. No functional impact was identified. During the past 12 months, the Veteran did not have any incapacitating episodes attributable to an eye condition.

VA treatment records during the period on review do not contain eye or vision complaints.

During the October 2024 Board hearing, the Veteran testified wearing glasses, reporting that he had discomfort ("like a little scratch") in his left eye, seeing the scar in his eye every time he looked at something, especially long distance and when trying to focus in the course of his work as a professional fisherman. The Veteran's (former) representative asserted at hearing that the VA examination report was "almost blank" and that a remand was warranted for a new VA examination.

The Board has reviewed the evidence of record in conjunction with the applicable laws and regulations and finds that an initial compensable rating for the Veteran's left eye disability is not warranted.

As previously noted, in order to be entitled to a compensable rating under the diagnostic criteria for the General Rating Formula, the evidence must demonstrate either incapacitating episodes or visual impairment due to the diagnosed disability. Here, neither is shown.

Evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b).

The Veteran was afforded an in person VA examination by a clinician specialized in Optometry in August 2019 which reported no incapacitating episodes (in the last 12 months) and no visual impairment due to the Veteran's hemorrhage of the left orbit. No medical evidence, including VA treatment records, counter these findings.

While the Veteran has reported symptoms of discomfort or seeing his scar when he tries to focus at distance, the evidence weighs against finding such symptoms result in incapacitating episodes. The Veteran has also reported seeing a scratch in his eye; however, the evidence of record does not reflect a visual defect outside of a refractive error for which the Veteran wears glasses. The Veteran's corrected and uncorrected distance vision were entirely normal per the VA examination (20/20 or better), as was the Veteran's corrected near vision. The uncorrected near distance of 20/50 was reported bilaterally and not attributed to the Veteran's left eye disability.

The Veteran's (former) representative asserted at the Board hearing that the VA examination was inadequate because it was "almost blank." The Board finds this argument lacks merit as the VA examination report included responses to all relevant questions pertaining to the Veteran's eyes/vision to include detailed measurements and assessments. Based on the comprehensive findings of the VA examination, the VA examiner's expertise as an Optometrist, as well as the fact there is no countervailing medical evidence of record, the Board finds the August 2019 VA examination report is entitled to significant probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board's inherent fact-finding authority includes the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Prejean v. West, 13 Vet. App. 444 (2000) (generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (an evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached).

Based on the foregoing, the Board finds the evidence of record is persuasively against the claim. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, an initial disability rating in excess of 0 percent for a left eye disability is denied.

2. Entitlement to a compensable rating for a left lower eyelid scar.

The Veteran seeks an increased, or compensable, rating for his left lower eyelid scar See October 2024 Board Hearing transcript.

By way of procedural background, a September 2019 rating decision granted service connection for a left lower eyelid scar and assigned a 0 percent, or noncompensable, evaluation effective June 11, 2019. As the rating decision granting service connection is on appeal, this claim is one for an initial rating with the period on review beginning June 11, 2019.

The Veteran is presently rated under Diagnostic Code (DC) 7800 for a scar of the face which provides a 10 percent rating for one characteristic of disfigurement which is defined under Note (1) as a scar of 5 or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (0.6 centimeter) wide at the widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin that is hypo-or hyper-pigmented, or with an abnormal texture, underlying soft tissue missing or indurated and inflexible skin, in an area exceeding six square inches (39 square centimeters).

A 30 percent rating is warranted under DC 7800 where there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.

Turning to the evidence, the Veteran attended an in person VA examination in September 2019 and was diagnosed with a healed left eyelid and eye orbit scar following left orbit fracture repair in 1986. His scar was not painful or unstable with frequent loss of covering of the skin. The scar measured 7 centimeters long and 0.1 wide (at the widest part). No elevation, adherence to underlying tissue or missing underlying soft tissue was identified. Nor was there abnormal pigmentation or texture identified; however, in another section of the report the examiner noted that the approximate combined total area in centimeters square with hypo- or hyperpig
ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.

Turning to the evidence, the Veteran attended an in person VA examination in September 2019 and was diagnosed with a healed left eyelid and eye orbit scar following left orbit fracture repair in 1986. His scar was not painful or unstable with frequent loss of covering of the skin. The scar measured 7 centimeters long and 0.1 wide (at the widest part). No elevation, adherence to underlying tissue or missing underlying soft tissue was identified. Nor was there abnormal pigmentation or texture identified; however, in another section of the report the examiner noted that the approximate combined total area in centimeters square with hypo- or hyperpigmented area was 1 centimeter squared. The scar was neither tender to palpation, nor unstable on inspection. There was no gross distortion of asymmetry of facial feature or visible or palpable tissue loss. No limitation of function or functional impact was identified.

The Board observes that, during the August 2019 VA examination for the Veteran's left eye disability, the Optometrist reported that the Veteran had a scar below the left eye measuring 0.5 x 0.5 centimeters, characterized as a slight surface scar on the cheekbone below the left eye. Under the Remarks section, the examiner listed scar attributes as "surface contour of scar elevated or depressed on palpation (or inspection in the case of cornea or sclera)."

VA treatment records do not contain notations regarding the Veteran's scar.

During the October 2024 Board hearing, the Veteran testified his scar was very visible, reporting he had an indentation on his cheekbone that was broken. The Veteran's representative asserted the VA examination regarding the Veteran's left eye disability and scar were "almost blank" and that remand for a new VA examination was warranted.

The Board has reviewed the evidence of record in conjunction with the applicable laws and regulations and finds that an initial 10 percent rating, but no higher, is warranted for the Veteran's left lower eyelid scar.

The Veteran testified that he had an "indentation" on his cheekbone and the August 2019 VA examination findings included the following notation: "surface contour of scar elevated or depressed on palpation (or inspection in the case of cornea or sclera)." While the September 2019 VA examination report did not include similar findings, the Board resolves reasonable doubt in favor of the Veteran in finding there is sufficient evidence of "surface contour of scar elevated or depressed on palpation" to warrant a 10 percent rating under DC 7800.

A higher 30 percent rating is not warranted, however, where the evidence of record persuasively weighs against finding visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.

Based on the foregoing, the evidence of record is in approximate balance as to whether a higher 10 percent rating is warranted. See 38 C.F.R. § 4.3. However, the evidence of record persuasively weighs against finding entitlement to higher or separate disability ratings at any point during the period on appeal. Lynch, 21 F.4th at 776. Accordingly, entitlement to an initial disability rating of 10 percent, but no higher, for a left lower eyelid scar is granted.

3. Whether new and relevant evidence has been received to readjudicate the claim for service connection for a low back disability.

4. Whether new and relevant evidence has been received to readjudicate the claim for service connection for a right knee disability.

5. Whether new and relevant evidence has been received to readjudicate the claim for service connection for a left knee disability.

In the AMA, VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.2501. If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. §§3.156(d), 3.2501.

New evidence is evidence that was not previously part of the record before agency adjudicators at the time of the prior denial. 38 C.F.R. § 3.2501(a). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement to benefits that was not previously addressed. Id.

Here, service connection for a lower back disability, right knee disability and left knee disability was denied in a March 2017 rating decision. The Veteran did not appeal the March 201
the AOJ will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. §§3.156(d), 3.2501.

Here, service connection for a lower back disability, right knee disability and left knee disability was denied in a March 2017 rating decision. The Veteran did not appeal the March 2017 rating decision within one year of its issuance or submit new and relevant submit evidence during that period. As such, the July 2017 rating decision became final.

In April 2019, the Veteran submitted a VA Form 21-526EZ asserting that his back disability began in February 1989 from rappelling while carrying his gear to include an M60 machine gunner and that his bilateral knees (worse on right) disability began in October 1989, from the same activity. VA treatment records associated with the file in May 2019 reflect treatment for the low back and knee complaints. The Veteran submitted a VA Form 20-0995 Supplemental Claim Application seeking service connection for his low back, right and left knee in August 2019.

In the September 2019 rating decision that followed, the AOJ continued denial of service connection for these claims, finding VA treatment records associated with the file in May 2019 did not constitute relevant evidence.

In connection with these claims, the Veteran testified during an October 2024 Board hearing that during his last year in the Marine Corps he was involved in jungle operation in Panama, that he landed very hard during a rappelling incident herniating his back resulting in back and knee problems, and that his right knee would not sustain weight.

The Board finds that new evidence has been submitted and associated with the claims file to include lay statements in the April 2019 VA Form 21-526EZ, May 2019 VA treatment records, and a transcript of the October 2024 Board hearing at which the Veteran testified. This is new evidence because it was not of record at the time the prior March 2017 rating decision was issued. The Board finds the lay statements in the April 2019 VA Form 21-526EZ, as well as his testimony at the October 2024 Board hearing, relevant with assertions of a service event he believes is responsible for his current back and knee problems. Further, VA treatment records associated with the file in May 2019 are also relevant as evidenced by the AOJ's notation of treatment for knee and back pain as favorable findings in the rating decision on appeal. Collectively, such evidence tends to prove or disprove a matter at issue with these claims.

Consequently, the Board finds that new and relevant evidence has been received to readjudicate the claim for service connection for a low back disability, a right knee disability and a left knee disability.

Service Connection

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018).

While the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative, McClain v. Nicholson, 21 Vet. App. 319 (2007), Congress has specifically limited entitlement to service-connection to cases where such in-service disease or injury has resulted in disability. See 38 U.S.C. § 1110. This is defined as any condition that results in functional impairment of earning capacity. See 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Saunders, 886 F.3d at 1356. Hence, where the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be
38 U.S.C. § 1110. This is defined as any condition that results in functional impairment of earning capacity. See 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Saunders, 886 F.3d at 1356. Hence, where the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993).

For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The presumptive chronic diseases include organic diseases of the nervous system, to include sensorineural hearing loss associated with acoustic trauma. See Fountain v. McDonald, 27 Vet. App. 258 (2016). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A lay person is competent to report symptoms and experiences observable by their senses; however, usually, they are not competent to prove a matter requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. This standard does not require the evidence to be exactly equal; rather, it includes "scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

6. Entitlement to service connection for a right knee disability.

7. Entitlement to service connection for a left knee disability.

The Veteran seeks service connection for a bilateral knee disability. See e.g., August 2020 VA Form 10182, Notice of Disagreement.

Preliminarily, in the September 2019 rating decision on appeal, the AOJ favorably found that VA treatment records showed reports of bilateral knee pain after the Veteran fell in the street in 2019. See 38 C.F.R. § 3.104(c).

Turning to the evidence, service treatment records (STRs) reflect that
McDonough, 21 F.4th 776 (Fed. Cir. 2021).

6. Entitlement to service connection for a right knee disability.

7. Entitlement to service connection for a left knee disability.

The Veteran seeks service connection for a bilateral knee disability. See e.g., August 2020 VA Form 10182, Notice of Disagreement.

Turning to the evidence, service treatment records (STRs) reflect that the Veteran complained of body aches and a sore throat in October 1986 and was assessed with an upper respiratory infection. Similarly, in July 1987, the Veteran complained of soreness and swelling associated with respiratory symptoms. In September 1989, the Veteran again complained of body aches and sore throat and was assessed with a viral syndrome. While knee complaints are not noted in service, the Veteran sought treatment for other musculoskeletal problems. See e.g., October 1987-February 1988 (left wrist pain); May-September 1988 (right hand pain and swelling); July 1989 (corns on feet).

Post service treatment records begin in October 1997, with complaints of neck and back pain. See VA treatment records. In April 2007, the Veteran complained of low back and right shoulder pain. During a May 2007 physical therapy evaluation for his back, an examination of the extremities revealed bilateral knee flexion and extension within normal limits, as well as normal 5/5 strength. In March 2013, the Veteran complained of back, neck and right shoulder pain after a motor vehicle accident in January 2013. It was not until December 2013 that the Veteran reported bilateral knee pain, in addition to right shoulder and back pain. Chronic lower back pain was reported since 1989 after propelling in the marines and landing on his back side. He intermittently complained of knee pain thereafter. See VA treatment records dated February 2014 and April 2014 (reported knee pain as well as lower back and right shoulder pain). In May 2015, EMG studies revealed electrodiagnostic evidence of a left lateral femoral cutaneous neuropathy.

In March 2019, the Veteran reported "new" bilateral knee pain after falling through a meter grate on the sidewalk. See VA treatment records. X-rays were negative for fracture or dislocation. A superficial skin tear was observed on the right knee with mild swelling. The Veteran reported he was being treated for his pain through a physician he was sent to by his attorney as part of a lawsuit against the city. Normal range of motion and strength of the knees was noted bilaterally in April 2019. In May 2019, the Veteran complained he had a history of knee pain with right knee pain worsening after a fall. It was noted the Veteran had chronic lower back pain since 1989 after propelling in the Marines and landing on his backside. In July 2019, the Veteran complained of neck and back pain. While no knee pain was reported during this visit, an assessment of right knee osteoarthritis following a reportedly abnormal magnetic resonance imaging (MRI) was noted.

During the October 2024 Board hearing, the Veteran testified that he had knee problems (to include pain and being unable to sustain weight) since leaving the Marine Corps following a rappelling incident and he denied that his knee problems started in 2019 after he fell. He reported receiving treatment for his knees to include acupuncture, having blood injected into his knee and taking medication. His (former) representative asserted that STRs reference to body aches "would naturally include joint pain including leg and back" in support of an assertion the Veteran experienced knee pain in service.

The Board has reviewed the evidence of record in conjunction with the applicable laws and regulations and finds that service connection is not warranted for a right knee disability or a left knee disability.

The Board finds the first element of service connection, a current disability, has been established with the Veteran's treatment for bilateral knee pain. However, the evidence of record persuasively weighs against finding an in service event.

The Veteran reports he hurt his knees in service from rappelling while carrying heavy gear. Other musculoskeletal complaints were reported in service as noted above but not knee problems. Further, the Board observes that the references to "body aches" in the STRs appeared strictly in the course of treating for viral infections or other respiratory complaints. Thus, the Board does not infer that the Veteran's treatment referencing body aches related to any musculoskeletal knee problems as suggested by the Veteran's (former) representative. The Veteran did not report knee symptoms until December 2013, over two decades after service. Significantly, post-service treatment records begin as early as 1997 with complaints of low back and right shoulder pain. The Veteran reported to his treatment providers that he was involved in a 1989 propelling incident in service, which he consistently linked to his chronic lower back pain. See e.g., VA treatment records from May 2007, December 2013, April 2014, May 2014, January 2016. Treatment records do not show that the Veteran reported the 1989 incident in relation to his knee pain. Rather, beginning in 2019, his knee problems were linked to a fall through a grate which was reportedly significant enough to result in the Veteran filing a lawsuit against the city. See March 2019 VA treatment records.

It is well established precedent that the Board may not reject lay evidence solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, lack of contemporaneous evidence and length of time between onset and report of observations may properly be considered as a factor in assessing credibility. Id. Similarly, while the absence of evidence may generally not be relied on as substantive negative evidence, in some instances, silence in a record where a notation of a particular fact would normally be expected may be considered. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (explaining that where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the conditions or symptoms did not exist); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes).

Here, the Veteran reported other musculoskeletal problems during and after service without reference to knee pain for over two decades after discharge. The Veteran did not relate his knee pain to service in the course of his treatment. He did, however, consistently report to his treatment providers that a 1989 propelling event in service resulted in chronic back pain. Considering the foregoing, the Board finds the Veteran's lay statements made in the course of treatment to be of greater probative value than those made in conjunction with the filing of this claim. In sum, the evidence of record persuasively weighs against finding an in service event relative to the Veteran's right and left knee disabilities.

The Board notes there is one assessment of right knee osteoarthritis in a July 2019 VA treatment record, although the Veteran did not complain of knee pain during this visit. To the extent the Veteran is appropriately diagnosed with a right knee arthritic condition, the Board finds that presumptive service connection for the chronic disease of arthritis is not warranted as there is no evidence of arthritis of the thoracolumbar spine within one year of service under 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); nor is there persuasive evidence of symptoms thereof between the time of discharge until the first evidence of arthritis in 2019, nearly 28 years after service. 38 C.F.R. § 3.303(b) (emphasis added); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board acknowledges there may be private treatment records for knee complaints based on the Veteran's reports that he was treating for his knee pain through a physician he was sent to by his attorney as part of a lawsuit against the city. See March 2019 and May 2019 VA treatment records. By the Veteran's own account, such treatment was rendered in the course of a lawsuit following the March 2019 injury to his knee(s). Thus, there is no indication treatment through a private provider preceded the
nearly 28 years after service. 38 C.F.R. § 3.303(b) (emphasis added); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board acknowledges there may be private treatment records for knee complaints based on the Veteran's reports that he was treating for his knee pain through a physician he was sent to by his attorney as part of a lawsuit against the city. See March 2019 and May 2019 VA treatment records. By the Veteran's own account, such treatment was rendered in the course of a lawsuit following the March 2019 injury to his knee(s). Thus, there is no indication treatment through a private provider preceded the March 2019 injury. Thus, the Board declines to remand this claim in an attempt to obtain these records. Remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Finally, the Board acknowledges the Veteran was not afforded a VA examination for the claimed disabilities. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held there must be "medically competent" evidence of a current disability. However, once a current disability is established, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279.

While there is medically competent evidence of a current disability here, the evidence of record weighs against finding that an event, injury, or disease occurred in service or that a chronic disease during an applicable presumptive period was present. Thus, a VA examination is not warranted.

Based on the foregoing, the evidence of record is persuasively against the claim. See Lynch, 21 F.4th at 776. Accordingly, service connection for a right knee disability and a left knee disability is denied.

8. Entitlement to service connection for bilateral hearing loss is denied.

The Veteran seeks service connection for bilateral hearing loss. See e.g., August 2020 VA Form 10182.

In the September 2019 rating decision on appeal, the AOJ favorably found that the Veteran's Military Occupational Specialty (MOS) of mortar man had a high probability for military noise exposure and that his left ear exhibited a significant shift while on active duty. See 38 C.F.R. § 3.104(c).

Turning to the evidence, the Veteran has attended two in person VA examinations. During the first, in January 2017, word discrimination utilizing the Maryland CNC was reported as 100 percent for both ears. Audiometric testing at the time revealed the following:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 dB 10 dB 15 dB 20 dB 35 dB

LEFT 10 dB 15 dB 15 dB 15 dB 25 dB

The VA examiner concluded that the Veteran's hearing loss was not caused by service opining that:

It is well known that prolonged exposure to high intensity noise levels like the military type can cause damage to auditory structures resulting in hearing loss. Veteran was exposed
. During the first, in January 2017, word discrimination utilizing the Maryland CNC was reported as 100 percent for both ears. Audiometric testing at the time revealed the following:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 dB 10 dB 15 dB 20 dB 35 dB

LEFT 10 dB 15 dB 15 dB 15 dB 25 dB

The VA examiner concluded that the Veteran's hearing loss was not caused by service opining that:

It is well known that prolonged exposure to high intensity noise levels like the military type can cause damage to auditory structures resulting in hearing loss. Veteran was exposed to military noise as mortarman/infantry in the US Marine Corps for 4 years. However, audiograms during active duty indicated normal hearing even after being exposed to hazardous noise.

A March 2017 rating decision granted service connection for tinnitus with a 10 percent evaluation effective January 12, 2016. Service connection for bilateral hearing loss was denied on the basis that the Veteran's audiometric findings did not meet the criteria for a grant of service connection for hearing loss.

A second VA examination took place in August 2019. Word discrimination utilizing the Maryland CNC was reported as 96 percent for the right ear and 98 percent for the left ear. Audiometric testing at the time revealed the following:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 dB 15 dB 15 dB 20 dB 30 dB

LEFT 10 dB 15 dB 15 dB 30 dB 30 dB

The VA examiner noted the Veteran's conceded noise exposure in service finding that hearing loss was consistent with noise induced hearing loss.

The Board has reviewed the evidence of record in conjunction with the applicable laws and regulations and finds that service connection for bilateral (or unilateral) hearing loss is not warranted.

As set out above, unlike the general rule for service connection claims, where a disability can be shown by functional impairment of earning capacity, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), VA regulations require specific auditory thresholds to constitute a hearing loss disability. 38 C.F.R. § 3.385. If these thresholds are not met, there is no hearing loss disability for VA purposes.

To reiterate, 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385.

The evidence of record does not indicate that at any point the Veteran met the above criteria for hearing loss for VA purposes. While the auditory thresholds were recorded as over 26 decibels on the right during the January 2017 VA examination at 4000 Hertz, and over 26 decibels on the left at 3000 and 4000 Hertz as well as over 26 decibels on the right at 4000 Hertz during the August 2019 VA examination, this does not meet the criteria of 26 decibels or greater in at least three of the relevant frequencies. See 38 C.F.R. § 3.385 (emphasis added). Further, the evidence of record does not show speech recognition scores of less than 94 percent. Id.

In conclusion, where the evidence does not support finding a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225.

As a lay person, the Veteran is competent to report that he has difficulty hearing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Unfortunately, as a layperson, the Veteran did not have the requisite expertise to provide a competent opinion as to whether he had a current hearing loss disability in accordance with VA standards, as such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, the results of an audiogram administered by a state-licensed audiologist
.

Based on the above, the Board finds that the competent evidence of record persuasively weighs against finding the Veteran had a diagnosed left or right ear hearing loss disability for VA purposes. See Lynch, 21 F.4th at 781-82. Accordingly, service connection for bilateral (or unilateral) hearing loss is denied.

REASONS FOR REMAND

9. Entitlement to service connection for a low back disability is remanded.

The Veteran seeks service connection for a low back disability. See e.g., September 2020 VA Form 10182.

In the September 2019 rating decision on appeal, the AOJ favorably found that VA treatment records showed complaints of back pain. See 38 C.F.R. § 3.104(c).

Under the AMA, remand is required if the Board finds that a duty to assist error occurred prior to the rating decision on appeal. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The Board may remand a claim to correct any other error in satisfying a regulatory or statutory duty, "if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim." 38 C.F.R. § 20.802(a). Regrettably, the Board finds that there are pre-decisional duty to assist errors warranting remand. First, however, a brief recitation of the evidence of record.

Turning to the evidence, STRs are silent for back complaints. Approximately six years after separation from service, in October 1997, the Veteran reported neck and back pain. See VA treatment record. X-rays were interpreted as revealing mild disc space narrowing at L4-L5 and L5-S1. Low back pain was reported again in April 2007. During this visit, the Veteran reported he had lower back pain since 1989 after propelling in the marines and landing on his back size. The pain had reportedly worsened over the last two years. The treating clinician referred the Veteran to physical therapy noting he had chronic low back pain for 18 years. See VA treatment record. The Veteran continued to be treated for back pain thereafter, reporting the same 1989 incident in service. See e.g., VA treatment records from May 2007, December 2013 (also reporting his back pain worsened after a January 2013 motor vehicle accident), April 2014, May 2014, January 2016.

A December 2013 CT of the lumbar spine was interpreted as revealing posterior disc herniations at L4-L5 and L5-S1, posterior bulging of the intervertebral disc at L3-L4 and minimal diffuse degenerative changes. In May 2015, EMG studies revealed electrodiagnostic evidence of a left lateral femoral cutaneous neuropathy. In April 2019, the Veteran reported his low back pain worsened after slipping on parking meter. He was assessed with lumbago with sciatica. Lumbar x-rays were compared with an October 2016 MRI. Multilevel tiny anterior osteophytes were observed with facet arthropathy at the two most caudal lumbar levels. In May 2018, the Veteran required lidocaine patches for chronic low back pain. It was noted he had a previous lidocaine ointment prescription in 2014. In May 2019, the Veteran reported again that he had chronic lower back pain since 1989 after propelling in the marines and landing on his backside. In July 2019, it was noted that the Veteran had anatomic variant of 6 lumbar vertebra and a presumed benign lesion of L1.

After careful review of the record, the Board finds that there are pre-decisional duty to assist errors warranting remand.

Foremost, the Board finds that a remand is warranted for a VA examination. As noted above
2018, the Veteran required lidocaine patches for chronic low back pain. It was noted he had a previous lidocaine ointment prescription in 2014. In May 2019, the Veteran reported again that he had chronic lower back pain since 1989 after propelling in the marines and landing on his backside. In July 2019, it was noted that the Veteran had anatomic variant of 6 lumbar vertebra and a presumed benign lesion of L1.

After careful review of the record, the Board finds that there are pre-decisional duty to assist errors warranting remand.

Foremost, the Board finds that a remand is warranted for a VA examination. As noted above, the Veteran was treated for back pain as early as 1997 and has continued to be treated for back problems since this time. With the various diagnoses of record, the Board finds the first element of service connection, a current disability, is established. While STRs do not reflect back complaints, the Board finds that, resolving reasonable doubt in favor of the Veteran, an in service event is established with the Veteran's consistent reports to his treatment providers that his chronic back pain began in service in 1989. Because there is an indication that the Veteran's low back disability may be associated with service but insufficient competent medical evidence to make a decision on the claim, the Board finds that the Veteran met the requisite threshold with the evidence of record at the time of the rating decision on appeal to trigger VA's duty to assist. McLendon, 20 Vet. App. at 81.

Further, the Board finds there was a pre-decisional duty to assist error in not requesting private treatment records. VA treatment records before the AOJ at the time the rating decision issued reported the Veteran had low back pain since 1989, followed by a motor vehicle accident in 2013, was seen by an outside primary care physician, had a CT scan, was found to have some posterior disc herniations and given Methocarbamol and Naproxen for pain. See May 2014 VA treatment record. Despite the foregoing, there was no attempt by the AOJ to obtain these records. Thus, remand is required for a pre-decisional duty to assist error so that the AOJ may make reasonable attempts to request the private treatment records in accordance with 38 C.F.R. § 3.159(c)(1).

Based on the foregoing, remand is warranted. In remanding this claim, the Board intimates no opinion as to the credibility or probative value of any lay statements in relation to these claims.

This matter is REMANDED for the following action:

1. Make reasonable efforts to obtain the Veteran's private treatment records.

2. Following completion of step 1 above, schedule the Veteran for a VA examination with an appropriate clinician. The claims folder, including this remand, must be reviewed in conjunction with the examination. The examiner shall respond to the following:

Whether it is as approximately likely as not that the Veteran's current low back disability was incurred in or as the result of active service?

3. Readjudicate the remanded issue.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Long, Kindra F.

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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