Citation Nr: 0006572 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 97-24 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for left knee pain. 4. Entitlement to an initial compensable evaluation for service-connected right knee patellofemoral pain syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from November 1992 to July 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 1997 rating decision from the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hearing loss, tinnitus, and left knee pain. The RO further granted service connection for right knee pain with a noncompensable evaluation, effective August 1, 1996. The Board notes that at the December 1999 videoconference hearing before the undersigned, the veteran indicated that he wished to withdraw his claims for service connection for left leg and left hip pain, but not for left knee pain. Transcript, p. 3. A substantive appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b) (1999). Therefore, the Board will not consider entitlement to service connection for left leg or left hip pain. The veteran's claim for an initial compensable evaluation for service-connected right knee disability will be discussed in the remand portion of this decision. FINDINGS OF FACT 1. The record does not show pure tone thresholds that meet the requirements for a current hearing loss disability. 2. The veteran's tinnitus began during service and continues until the present. 3. The record contains no current diagnosis of a left knee disability manifested by left knee pain. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.385 (1999). 2. The veteran's tinnitus was incurred in his active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim of entitlement to service connection for left knee pain is not well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where certain diseases, such as those affecting the organic nervous system, are manifested to a compensable degree within the initial post-service year, service connection may be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d). The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The United States Court of Appeals for the Federal Circuit held that, "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). Service Connection for Bilateral Hearing Loss and Tinnitus I. Factual Background The veteran's DD Form 214 reported his primary specialty as motor vehicle operator. The veteran's service enlistment examination in May 1992 showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 5 10 LEFT 20 15 20 20 20 A December 1992 service audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 5 25 LEFT 20 20 25 25 30 A March 1995 service audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 5 5 LEFT 15 15 25 20 25 A June 1996 service audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 10 15 LEFT 20 20 25 25 25 A November 1996 VA audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 30 LEFT 15 20 30 25 30 The examiner noted the veteran's period of service and indicated that the veteran worked with all types of heavy equipment and used ear protection most of the time. The examination reported that the veteran's hearing was tested on entry and discharge with no mention of hearing loss by examiners. The veteran reported periodic tinnitus in the right ear for the previous two years. The tinnitus occurred about twice weekly and lasted as long as five minutes without relation to any particular incident. The examiner reported that the veteran's hearing for pure tones and speech recognition in both ears was within normal limits. Tinnitus was reported in the right ear, not the left, but was not associated with hearing loss. A VA examination was also conducted in November 1996. The veteran complained of humming in his right ear, which occurred up to two-to-three times per day and lasted for about 10-15 minutes. He reported that the humming caused him problems with hearing and understanding speech and sometimes kept him up at night. The examiner provided diagnoses of minimal bilateral hearing loss and tinnitus. At a videoconference hearing before the undersigned in December 1999, the veteran testified that he was first diagnosed with hearing loss in 1995. Transcript, p. 21. The veteran stated that his job during service was as a .50 caliber machine gunner. He reported that he would fire the weapons about four days per week. He noted that hearing protection was issued and he was required to wear it. Transcript, pp. 21-22. The veteran testified that he first complained of ringing in his ears in 1995 and it continued to the present. Transcript, p. 22. He stated that the humming came and went and lasted for about 30-40 minutes approximately two-to-three times per week. Transcript, p. 23. He reported that the humming would wake him at night, but he was able to go back to sleep. Transcript, p. 23. The veteran testified that the ringing in his ears was mostly on the right, but at times he could hear it on both sides. Transcript, p. 26. II. Analysis Impaired hearing will be considered a disability, under the VA regulations, when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). None of the audiogram results of record reflects values that meet the definition of hearing loss disability under 38 C.F.R. § 3.385. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The record does contain a current diagnosis of tinnitus, and, although there is no record of complaints of tinnitus during service, the veteran reports that he has had the ringing in his ears since 1995. Based on the veteran's statements and the VA examination in November 1996, the Board finds that the veteran's claim for service connection for tinnitus is well grounded. 38 U.S.C.A. §5107(a) (West 1991). The VA has a duty to assist the veteran in the development of all facts pertinent to her claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1999). The claims folder contains all available service medical records and the RO has requested and received the available reports of VA medical examinations. The veteran has not identified any post-service treatment for his tinnitus. It appears that all possible development has been completed, and the VA has satisfied its duty to assist the veteran under these circumstances. 38 U.S.C.A. § 5107(a). The veteran is competent to provide testimony as to observable symptoms, including ringing or humming in the ears. See Savage v. Gober, 10 Vet. App. 489, 497 (1997). The veteran reported at the VA examination in November 1996, less than four months after his discharge from service, that he had periodic tinnitus for the previous two years. At the videoconference hearing, the veteran reported that the ringing in his ears began in 1995 and continued to the present. The VA examiner in November 1996 noted a diagnosis of tinnitus and noted only noise exposure during service. The Board notes that since service the veteran has been a full-time student. The Board finds that the evidence does not preponderate against a finding that the veteran's tinnitus was incurred in his active military service. Service Connection for Left Knee Pain III. Factual Background The veteran's service medical records contain no complaints, diagnoses, or opinions of any left lower extremity pain or pathology. A VA general medical examination was conducted in November 1996. The veteran reported dull pain in the left knee, which he stated might be secondary to compensating for pain in the right leg. Range of motion testing of the left knee showed flexion of 140 degrees and extension to 0 degrees. The examiner provided diagnoses of "claims left knee pain," and limited range of motion of the left knee. A VA orthopedic examination was also conducted in November 1996. The veteran reported soreness in his left leg from thigh to calf, about twice per month for approximately 30 minutes. He noted that the soreness seemed to come on with prolonged standing. Physical examination revealed no tenderness, instability, soft tissue masses or swelling, atrophy or weakness. Range of motion testing of the left knee revealed flexion to 140 degrees and extension to 0 degrees. X-ray examination was essentially normal. The examiner provided a diagnosis of normal age-appropriate examination of the left lower extremity without evidence of current localized tenderness or swelling. At a videoconference hearing before the undersigned in December 1999, the veteran testified that his private physician had stated that his left knee condition was secondary to his right knee condition. Transcript, p. 14. He stated that he began to have problems with is left knee approximately one year after he was discharged from service. Transcript, p. 15. He reported pain in his left knee, which he ranked as a 5 on a scale of 1-10, with 10 being very severe. Transcript, p. 15. He noted that the left knee did not lock, but the left knee did exhibit moderate swelling maybe once per month. Transcript, p. 19. The veteran stated that his private physician did not provide a diagnosis for his left knee, but planned to refer the veteran to an orthopedic doctor for further treatment and analysis. Transcript, p. 21. IV. Analysis Service connection may be granted for disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). The United States Court of Appeals for Veterans Claims (known as the United Stated Court of Veterans Appeals prior to March 11, 1999) (hereinafter, "the Court") has held that compensation can be awarded for a nonservice-connected disability that is aggravated by a service-connected disability for the degree of disability over and above the degree of disability existing prior to the aggravation, even if the service-connected disability is not the proximate cause of the nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-449 (1995). The record contains no diagnosis of a current left knee disability. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The veteran testified that, although he was currently seeking treatment from a private physician for his left knee pain, the physician had not provided a diagnosis, of which the pain was a manifestation. The VA examiner in November 1996 noted a diagnosis of limitation of motion of the left knee. However, the range of motion noted in the physical examination was normal. See 38 C.F.R. § 4.71, Plate II (1999). The Board notes that the physical examination showed limitation of motion of the right knee, and it appears that the diagnosis section merely contained a typographical error in reported left knee limitation of motion. In the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225 (1992). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left knee pain is denied. REMAND The Board notes that the most recent VA examination of record for the veteran's service-connected right knee condition is more than three years old. At the December 1999 hearing, the veteran testified that his right knee had become increasingly painful and reported recurrent locking and "giving way" of the right knee. Overall, the Board is of the opinion that additional development of the record is needed in order to determine the underlying medical issues to enable the Board to render a final determination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED to the RO for the following development: 1. The RO should arrange for an examination of the veteran by an appropriate VA specialist for the purpose of ascertaining the current nature and extent of severity of the veteran's right knee patellofemoral pain syndrome. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner should perform any testing necessary to provide an assessment of the veteran's condition, specifically range of motion testing. The examiner should note whether pain and functional loss are additionally disabling and should note the existence, if any, of crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movement smoothly, pain on movement, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. 2. The RO should carefully review the examination report to ensure that it is in full compliance with this remand, including all of the requested findings and opinions. If not, the report should be returned to the examiner for corrective action. 3. The RO should then adjudicate the claim for an initial compensable evaluation for service-connected right knee patellofemoral pain syndrome, including consideration of the factors enumerated by the Court in DeLuca v. Brown, 8 Vet. App. 202 (1995). If the claim remains denied, the veteran should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites any applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. The veteran should then be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The veteran need take no action until he is notified. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (1999). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. John E. Ormond, Jr. Member, Board of Veterans' Appeals