BVA9504535 DOCKET NO. 92-05 718 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a right knee disorder, hearing loss, tinnitus, and a disability manifested by hematuria. REPRESENTATION Appellant represented by: Colorado Department of Veterans Affairs ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from June 1968 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1991 decision by the Department of Veterans Affairs (VA), Denver, Colorado, Regional Office (RO), which denied service connection for a right knee disorder, hearing loss, tinnitus, and a disability manifested by hematuria (blood in the urine). The Board remanded the case to the RO in January 1993 for further development. The case was returned to the Board in January 1995. In a statement received by the RO in November 1994, the veteran made reference to liver damage and noted that he had not been given an Agent Orange physical. It is not clear, but he may be seeking service connection for additional disability, including a liver disorder. Since this matter has not been developed for appellate consideration and is not intertwined with the current claims, it is not properly before the Board at this time and is referred to the RO for clarification and any appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right knee disorder, hearing loss, tinnitus, and a disability manifested by hematuria began during service or as the result of an incident of active duty. He attributes his right knee disability to an injury while getting off of a helicopter during an aerial assault with his unit in Vietnam. He recalls that he was treated at a first aid station shortly thereafter, and he states that he has had recurrent problems with his knee ever since. He attributes his hearing loss and tinnitus to his exposure to weaponry fire without any ear protection while engaged in combat in Vietnam. He states that he first learned he had hematuria many years after service, but he attributes the problem to treated water and chemicals he was exposed to while in Vietnam. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that claims for service connection for hearing loss, tinnitus, and a disability manifested by hematuria are not well grounded. It is also the decision of the Board that the preponderance of the evidence is against the claim for service connection for a right knee disorder. FINDINGS OF FACT 1. The veteran has not submitted evidence of plausible claims for service connection for hearing loss, tinnitus, and a disability manifested by hematuria. 2. A chronic right knee disorder was not present in service or for many years later, and was not caused by any incident of service. CONCLUSIONS OF LAW 1. The veteran's claims for service connection for hearing loss, tinnitus, and a disability manifested by hematuria are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. A right knee disorder was not incurred in or aggravated by active service, nor may arthritis of the right knee be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty in the Army from June 1968 to September 1974, although from August 1969 to August 1974 he was AWOL. Prior to going AWOL he had service in Vietnam for approximately 9 months and his decorations included the Combat Infantryman Badge. The March 1968 pre-induction examination included audiometric testing showing normal decibel thresholds in both ears at all tested frequencies, except for a 45 decibel threshold at 4,000 hertz in the left ear. The service medical records are otherwise negative for any findings of a right knee disorder, hearing loss, tinnitus, or hematuria. At the time of the veteran's discharge examination in September 1974, clinical examination of the lower extremities, ears, and genitourinary system was normal. A urinalysis was negative. An audiometric examination revealed decibel threshold levels at 500, 1,000, 2,000 and 4,000 Hertz as follows: 0, 15, 10, and 10, respectively, in the right ear; and 5, 0, 10, and 10, respectively, in the left ear. No defects or diagnoses were noted. In an accompanying signed medical history form, the veteran denied a history of any relevant problems. The veteran received emergency room treatment at Southwest Memorial Hospital in June 1979 for pain and swelling of the right knee. Clinical findings included swelling and tenderness of the right knee. It was noted that there was no dislocation. The diagnosis was effusion of the right knee. The veteran was advised to go to Dr. Bostrom's office the day after discharge. Additional clinical records from Southwest Memorial Hospital show that the veteran was evaluated and treated for alcohol withdrawal in January 1980. A urinalysis at that time was negative for blood. Clinical records from the United States Public Health Services Hospital in Shiprock, New Mexico, show that the veteran was evaluated in February 1980 for complaints of dizziness of three weeks duration, headaches, occasional pressure behind his eyes, and intermittent tinnitus in the left ear. Additional history included an episode of vertigo approximately three years earlier which lasted one day and was fairly severe, and heavy drinking was also reported. An examination of the ears was negative. No pertinent abnormal clinical findings were noted. It was reported under the assessment that the veteran said he began to have his present symptoms when he decided to "sober up." He was evaluated in March 1980 for upper respiratory symptoms and headaches. Records from Southwest Memorial Hospital show treatment in June 1980 for vomiting blood after drinking; the bleeding reportedly started after he fell of a curb. In June 1985 the veteran first filed a VA compensation claim, requesting service connection for a right knee disability. He said he injured the knee when getting out of a helicopter in Vietnam in May 1969 and received treatment at that time. He reported post-service treatment from Dr. Bostrom in 1980. The claim was denied based on an unfavorable character of discharge determination at that time. VA clinical records show that the veteran was evaluated in September 1985 for hematuria of three weeks duration with two recent episodes of gross hematuria. He also complained of some urinary frequency and slight abdominal pain with urination. A urinalysis revealed four-plus blood. Following blood studies, it was reported that the veteran was not anemic. Further studies were recommended. It was also noted that a urologist was consulted, and he reported that there was no known relationship of Agent Orange to hematuria. The veteran was seen in a urology clinic in early October 1985 for follow-up, and he had no genitourinary complaints at that time. A history of microscopic hematuria was noted. He left before an examination could be performed. The assessment remained hematuria, and it was noted that the veteran was scheduled for an intravenous pyelogram and follow-up appointment in the urology clinic. Private clinical records from Mercy Medical Center show that the veteran was evaluated in June 1987 following a left knee injury. The clinical diagnosis was contusion of the left knee. An X-ray examination of the joint revealed mild degenerative changes. A right knee disability was not noted. In a Memorandum of Consideration dated in February 1988, the Department of the Army Board for Correction of Military Records denied the veteran's application that his discharge from under other than honorable conditions be changed to an honorable discharge because it was not filed within the time required. It was stated in the decision that the veteran was not available for his separation physical since he had requested excess leave. In February 1991 the veteran filed a claim for service connection for a right knee disability, loss of hearing, and blood in the urine. He said he injured his right knee in Vietnam in 1969, was treated at that time, and had not been treated since. He said he had hearing loss in Vietnam in 1969, due to the noise from weapons, although the condition had never been treated. The veteran also reported that blood in his urine was detected in 1984 during a physical examination, and detected again in 1989, and he noted he never had the problem before going to Vietnam. An RO administrative decision in July 1991 determined that the veteran's discharge in September 1974 was other than dishonorable for VA purposes and, therefore, the veteran was eligible to apply for VA benefits. The veteran underwent a VA disability evaluation examination in August 1991. He gave a history of treatment for hematuria in 1984 and 1989. The veteran also gave a history of a right knee injury in 1968 while in Vietnam when he jumped from a helicopter and twisted his knee. He said he experienced immediate pain and swelling, was taken to a first aid station where the knee was aspirated, and remained there for approximately two weeks before returning to his infantry unit for regular duty. He said that he has had problems with his knee ever since, with multiple subluxations of the patella when running or playing sports such as basketball. He reported that he was able to spontaneously reduce the dislocation but it was quite painful. He also said that he experienced soreness after walking about one-half mile and rarely ran because of the threat of subluxation. The veteran indicated he had not had a medical evaluation for this condition in the past. Additional history included blood in the urine, which was first noticed in 1984 on a routine physical examination. He reportedly was reevaluated for the problem in 1989. He also gave a history of occasional right flank pain. Physical examination was negative for flank tenderness to palpation. The veteran walked without a limp and had no difficulty getting up or off the examination table. He was able to perform a deep knee bend effortlessly. There was no atrophy in the musculature of the thigh and strength was 5/5, bilaterally. His knee flexed to 140 degrees and extended to 0 degrees. There was no crepitus to either passive or active flexion and extension. No effusions or patellar laxity was noted. The medial and lateral collateral ligaments were stable. McMurray's and Lachman's tests were negative. A urinalysis was negative for any pertinent abnormal findings. An X-ray examination of the right knee revealed evidence of mild degenerative change and of a remote patellar ligament avulsion. The clinical diagnoses were recorded as microscopic hematuria, etiology undetermined, and history of recurrent right patellar subluxation with degenerative joint disease of the right knee. The veteran also underwent a VA audiometric examination in August 1991. Pure tone thresholds were recorded at 500, 1,000, 2,000, 3,000, and 4,000 Hertz as follows: 5, 20, 20, 25, and 75, respectively, in the right ear; and 5, 15, 20, 40, and 75, respectively, in the left ear. Speech recognition ability was recorded as 92 percent correct in the right ear and 100 percent correct in the left ear. Constant tinnitus of both ears was also noted. The diagnosis was sensorineural hearing loss. A private clinical record dated in November 1994 shows that the veteran was evaluated for complaints concerning multiple joints including the knees. He gave a history of a dislocation of the right patella in 1968 in Vietnam with recurrence since then. Symptoms included crepitus, pain and swelling. It was noted that he had similar symptoms involving the left knee. X-rays were reported to show degenerative joint disease of the knees. After physical examination, the pertinent diagnosis was degenerative joint disease of both knees, right worse than left. Following the Board's remand, the RO made extensive efforts to develop all records of post-service treatment, and only those records summarized above could be secured. II. Analysis A. Service Connection for a Right Knee Disorder The veteran's claim, for service for a right knee disorder, is well grounded, meaning plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Following the Board's last remand, the RO developed the evidence to the extent possible, and the VA has met its duty to assist the veteran with this claim. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, and service incurrence will be presumed for arthritis which is manifest to a compensable degree within the year after service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. There is no medical evidence that the veteran had a right knee disorder during his 1968-1974 active duty. The 1974 discharge examination shows normal lower extremities and no history of knee problems. (A 1988 document from the Army Board for Correction of Military Records mentions that no discharge physical examination occurred, and the veteran suggests likewise; but this is incorrect, as the detailed discharge examination, including a medical history form signed by the veteran, is on file.) The veteran alleges a right knee injury while engaged in combat in Vietnam. Since he did, in fact, engage in combat, satisfactory lay or other evidence of the alleged injury, if consistent with the veteran's combat service, shall be accepted as sufficient proof of the injury. 38 U.S.C.A. § 1154. The veteran has submitted no such evidence. Moreover, while this law provides that service connection may not be precluded by absence of official service records, it does not create a presumption of service connection for combat veterans; service connection remains a factual determination which must be decided based on all the evidence in the individual case. Smith v. Derwinski, 2 Vet.App. 137 (1992). Even assuming the occurrence of the right knee injury while on active duty, the evidence indicates it was only acute and transitory and resulted in no chronic disability. This is shown by the normal discharge examination and the absence of abnormal clinical findings for years after service. 38 C.F.R. § 3.303(b); Mense v. Derwinski, 1 Vet.App. 354 (1991). The first post-service evidence of a right knee problem is from 1979, when the veteran was treated at Southwest Memorial Hospital for effusion of the joint, and he was referred to Dr. Bostrom (whose records are unavailable). The 1979 treatment, however, was about 10 years after the veteran's Vietnam service (which was followed by five years of AWOL), and about five years after his service discharge. Moreover, the 1979 treatment records contain no information linking the findings at that time to a remote service injury. The veteran first claimed service connection for a right knee disability in 1985, alleging it was due to a combat injury, and he has repeated this assertion in later statements, including when examined by the VA in 1991 and when recently treated at a private facility in 1994. These two examinations collectively show degenerative joint disease of both knees, worse on the right, and a history of recurrent right patellar subluxation. However, these findings were first reported long after discharge from service and they cannot be linked to the alleged in-service injury, given the number of years that have elapsed since the claimed trauma, and in view of the normal discharge examination and the absence of any documented right knee problems for years post-service. The recent medical records, while reporting the veteran's unsubstantiated history, do not provide the necessary linkage between incidents of service and the right knee disorder first noted long thereafter. Reonal v. Brown, 5 Vet.App. 458 (1993). The preponderance of the evidence demonstrates that the veteran's current right knee disability, including arthritis, began years after service, and was not caused by a combat injury or other incident of service. The disability was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt doctrine is inapplicable, and service connection for a right knee disorder must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Service Connection for Hearing Loss, Tinnitus and a Disability Manifested by Hematuria The threshold question, with regard to claims for service connection for these conditions, is whether the veteran has met his burden of submitting evidence to make the claims well grounded, or plausible. If he has not done so, the VA has no duty to assist him with the claims, and the claims must be dismissed as not well grounded. 38 U.S.C.A. § 5107(a); Murphy, supra. There is no medical evidence that the veteran had hearing loss, tinnitus, or hematuria during his 1968-1974 active duty, and the claimed conditions were not shown for many years after service. The veteran asserts that he developed a disability manifested by hematuria as a result of his exposure to treated water and unspecified chemicals while in Vietnam. However, for his claim to be plausible or well grounded, it must be supported by competent evidence, not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Under the circumstances, this would require competent medical evidence of causation to link remote incidents of service and the alleged disability. Grottveit v. Brown, 5 Vet.App. 91 (1993); Grivois v. Brown, 6 Vet.App. 136 (1994). The veteran has presented no medical evidence of a disability manifested by hematuria during service or until 1985, and he does not even allege an earlier presence of the problem. Nor has he presented medical evidence to link the current disability with events of service long ago. Thus, the claim for service connection for a disability manifested by hematuria is implausible and must be dismissed as not well grounded. The veteran's preinduction physical examination noted one abnormally high decibel threshold in one ear. However, the rest of the service medical records, including an audiometric examination performed at the time of the veteran's discharge from service, are negative for any findings suggestive of hearing loss or tinnitus. There is no post-service medical documentation indicative of hearing loss or tinnitus during the years immediately after service. A 1980 clinical record shows a complaint of left ear tinnitus, accompanying other symptoms such as dizziness and headaches. Service connection for bilateral hearing loss and tinnitus was not claimed until 1991, and the conditions were medically documented at a 1991 VA examination. None of the medical evidence links the conditions, first noted years after service, with remote incidents of service, including claimed acoustic trauma. Without such evidence, the claims are implausible. Thus, the claims for service connection for hearing loss and tinnitus also must be dismissed as not well grounded. Grottveit, Grivois, supra. ORDER Service connection for a right knee disorder is denied. The claims for service connection for hearing loss, tinnitus, and a disability manifested by hematuria are dismissed as not well grounded. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.