Citation Nr: 1317075	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  09-46 944	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.  

2.  Entitlement to service connection for bilateral tinnitus.  

3.  Entitlement to service connection for arthritis of the right knee.  

4.  Entitlement to service connection for arthritis of the left knee.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel

INTRODUCTION

The Veteran had active service in the Navy from October 1965 to March 1968 and service in the Air Force from April 1968 to October 1968.  He also had reservist service from May 1964 to October 1965, March 1968 to April 1968, October 1968 to May 1970, December 1972 to July 1974, July 1974 to February 1981, February 1981 to March 1984, and March 1984 to May 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, denying, among other issues, the claims currently on appeal.  Service connection for hearing loss of the right ear was granted in a January 2009 rating decision.  

The Veteran submitted a timely notice of disagreement to the March 2007 rating decision in September 2007.  The claims on appeal were again denied by the RO in a January 2008 statement of the case.  The Veteran did not appeal this decision to the Board in a timely fashion, and as such, the March 2007 rating decision was deemed to be final.  

In April 2008, the Veteran submitted additional evidence pertaining to his claims of service connection for hearing loss, tinnitus and arthritis of the knees.  This evidence was treated as a claim to reopen.  

In August 2008, VA also received records of the Veteran's service in the Navy from April 1964 to February 1968.  These records were not considered at the time of the previous rating decision of March 2007, as the RO previously issued a formal finding in February 2007 regarding the unavailability of the Veteran's complete service treatment records.  VA regulation provides that if at any time after VA issues a decision on a claim and VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA decided the claim, VA will reconsider the claim (on a de novo basis versus a claim for new and material evidence).  38 C.F.R. § 3.156(c)(1)(i).  Therefore, the Board will consider the claims on appeal on the merits rather than addressing whether new and material evidence has been received.  

In April 2012, the Veteran and his spouse testified before a Decision Review Officer (DRO) during a hearing held at the RO.  A transcript of the hearing has been associated with the claims file.

The issues of entitlement to service connection for arthritis of the right and left knees are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There is no evidence of a diagnosis of left ear hearing loss during active military service or within one year of separation from active service, or treatment for any associated symptomatology during this time.  

2.  The preponderance of the evidence of record demonstrates that the Veteran's current left ear hearing loss did not manifest during, or as a result of, active military service.  

3.  The evidence of record does not reflect a diagnosis of tinnitus during military service or within one year of separation from military service, or treatment for any associated symptomatology during this time.  

4.  The preponderance of the evidence of record demonstrates that the Veteran's current tinnitus did not manifest during, or as a result of, active military service.  


CONCLUSIONS OF LAW

1.  The criteria for establishing entitlement to service connection for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for establishing entitlement to service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  
	
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

A letter sent to the Veteran in August 2006 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content.  Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of his claims.  This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained copies of the Veteran's service treatment records and National Guard records.  Also, the Veteran received a VA audiometric examination in November 2008, and VA has obtained a copy of this examination report.  Copies of private treatment records and records from Sheppard Air Force Base have also been incorporated into the claims file.  Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

To establish service connection, there must be:  (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).  

Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).  

Relevant Facts

As noted above, the Veteran had active duty service in the Navy and Air Force, along with reservist service in the Navy Reserves and the National Guard.  Service personnel records list his military occupational specialty (MOS) during his Navy service as an ammunition keeper; his MOS during his service in the Air Force is listed as a air craft maintenance helper.  In the January 2009 rating decision, the RO conceded his noise exposure during his service in the Air Force.  The claims file indicates that the Veteran's MOS during his reservist service was as an administrative specialist.

The Veteran was afforded a Naval Reserves enlistment examination in April 1964.  There was no mention of hearing loss and no audiometric evaluation appears to have been performed.  An active duty examination was subsequently performed in October 1965, but there was again no audiometric testing performed.  The Veteran also denied a history of ear trouble in his report of medical history associated with the October 1965 examination.  As such, there is no evidence of a preexisting hearing loss disability and the Veteran is presumed sound at the time of enlistment.  Likewise, while the Veteran was afforded a release from active duty examination in February 1968, no audiometric testing was apparently performed.  Nonetheless, the records from the Veteran's naval service reflect no treatment for, or complaints of, left ear hearing loss or tinnitus.  

The Veteran was afforded an Air Force enlistment examination in April 1968.  The authorized audiological evaluation revealed pure tone thresholds, in decibels (dB), to be:




HERTZ



500
1000
2000
3000
4000
LEFT
0
5
10
N/A
10
As such, the Veteran was not suffering from hearing loss of the left ear, for VA rating purposes, at the time of enlistment with the Air Force.  For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 CFR § 3.385.  

The Veteran also denied suffering from hearing loss or ear trouble in his report of medical history associated with this examination.  The examining physician did note, however, that the Veteran's ear drum was not visible as it was impacted with cerumen.  There is no further evidence of treatment for hearing loss of the left ear during the Veteran's active service with the Air Force.  Regrettably, a separation examination is not of record.  

Nonetheless, the record contains a Reserves enlistment examination report dated December 1972.  An authorized audiological evaluation was performed as part of this examination, revealing pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
LEFT
25
15
15
15
25

The above audiometric results reflect that the Veteran was not suffering from hearing loss, for VA purposes, within 4 years of his separation from active duty.  See 38 CFR § 3.385.  

The record also contains a periodic examination report for the Army Reserves dated August 1974.  The authorized audiological evaluation revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
LEFT
20
15
15
10
15
Therefore, the evidence of record also demonstrates that the Veteran was not suffering from hearing loss of the left ear, for VA purposes, within approximately 6 years of his separation from active duty.  See id.  The Veteran also denied suffering from hearing loss or ear trouble in his report of medical history associated with this examination.  

An authorized audiological evaluation performed as part of an August 1978 periodic Army Reserves examination revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
LEFT
20
15
20
15
25

These audiological findings again reflect that the Veteran was not suffering from hearing loss of the left ear, for VA purposes.  The Veteran also denied hearing loss or ear trouble in his report of medical history associated with this examination.  As such, there is no evidence of left ear hearing loss, for VA purposes, within a decade of the Veteran's separation from active duty.  

According to an October 1982 periodic Army Reserves examination, the Veteran was suffering from bilateral high frequency hearing loss that was greater in the right ear than in the left.  However, the authorized audiological evaluation revealed pure tone thresholds, in dB, of the following:




HERTZ



500
1000
2000
3000
4000
LEFT
5
5
15
15
25

These audiometric findings are not reflective of a left ear hearing loss disability, for VA purposes.  See 38 CFR § 3.385.  The Veteran also denied suffering from hearing loss or ear trouble in his report of medical history associated with this examination.  

The first audiometric evidence of hearing loss of the left ear, for VA purposes, is a March 1984 National Guard enlistment examination report.  Audiometric testing revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
LEFT
10
10
15
15
45
The above findings are reflective of hearing loss for VA purposes, as the frequency at 4000 Hz is greater than 40 decibels (dB).  38 CFR § 3.385.  Nonetheless, the Veteran again denied hearing loss or ear trouble in his report of medical history associated with this examination, and a September 1986 audiometric evaluation revealed pure tone thresholds that are not reflective of left ear hearing loss, for VA purposes:  




HERTZ



500
1000
2000
3000
4000
LEFT
25
5
15
15
25

A March 1990 audiometric evaluation also reflected pure tone thresholds that are not representative of a hearing loss disability for VA purposes:




HERTZ



500
1000
2000
3000
4000
LEFT
25
20
15
20
35

See 38 C.F.R. § 3.385.

The Board notes that more recent records confirm that the Veteran now suffers from left ear hearing loss, for VA purposes.  According to an April 1995 National Guard examination report, pure tone thresholds, in dB, were:







HERTZ



500
1000
2000
3000
4000
LEFT
10
10
20
20
45

As such, the Veteran's auditory thresholds met the criteria for a finding of left ear hearing loss, for VA purposes, at this time.  See 38 C.F.R. § 3.385.  The Veteran again denied a history of hearing loss or ear trouble at this time, however.  

According to an October 2005 treatment record from Sheppard Air Force Base, the Veteran was requesting a more recent hearing test.  He described hearing loss that had existed for "a long time."  A November 2005 audiogram revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
20
25
40

The above results confirm that the Veteran met the criteria for a diagnosis of left ear hearing loss.  Id.  Speech recognition was noted to be 96 percent in the left ear.  However, this was performed using Maryland NU 6 testing rather than Maryland CNC testing, and is not valid for VA purposes.  See id.  The Veteran was diagnosed with mild high frequency sensorineural hearing loss of the left ear at this time.  He was also noted to be experiencing occasional tinnitus.  

Another audiometric evaluation was performed in April 2008, again revealing left ear hearing loss for VA purposes.  See id.  Pure tone thresholds, in dB, were found to be:




HERTZ



500
1000
2000
3000
4000
LEFT
20
20
30
35
60

It was noted that the above test results revealed sloping to severe sensorineural hearing loss, bilaterally.  It was also noted that there was outer hair cell dysfunction above 1500 Hz, which was consistent with puretone findings and significant to a history of noise exposure.  The Veteran was also noted to be suffering from subjective tinnitus.  The audiologist opined that after reviewing the Veteran's military records and comparing them with the above results, it was more likely than not that the Veteran's hearing loss was a product of noise exposure while on active duty.  

The Veteran was subsequently afforded a VA audiometric examination in November 2008.  The Veteran reported loud noise exposure while serving in the Navy when using a forklift to load ammunition.  He noted that hearing protection was occasionally used in the presence of loud noise.  He also described noise exposure while in the Air Force due to working on aircraft engines.  He indicated that he did use ear protection when performing this task.  The Veteran also reported loud noise exposure from diesel engines and tanks during his Army National Guard summer camps.  The Veteran also described occupational noise exposure without the use of hearing protection.  

The Veteran indicated that he also heard a "slight buzzing sound" approximately once a month that lasted for approximately one minute.  He was unable to report in which ear he heard the buzzing.  He noted that he began noticing this buzzing noise some two to three years earlier.  Audiological evaluation revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
LEFT
20
25
25
35
60

Speech audiometry revealed speech recognition ability of 92 percent in the left ear, meeting the requirements for hearing loss for VA purposes under 38 C.F.R. § 3.385.  The examiner interpreted these test results to reveal hearing within normal limits through 2000 Hz with a mild to moderate sensorineural hearing loss at 3000 Hz and above.  The examiner opined that the Veteran's left ear hearing loss was not caused by or a result of his in-service noise exposure.  The examiner explained that an evaluation performed in December 1972 reflected left ear hearing thresholds to be within normal limits at this time.  The examiner further opined that the Veteran's tinnitus was less likely than not due to in-service noise exposure.  The examiner explained that while the Veteran did report a previous history of bilateral tinnitus, he now denied any recent history of persistent, chronic or constant tinnitus for either ear.  The Veteran described infrequent episodes of slight buzzing approximately once per month.  

Left Ear Hearing Loss

The Veteran contends that he is entitled to service connection for hearing loss of the left ear.  Specifically, the Veteran has asserted that he was exposed to a great deal of noise during his active military service and that he has suffered from impaired hearing for many years.  However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's hearing loss of the left ear did not manifest during, or as a result of, active military service.  As such, service connection is not warranted.  

The records of treatment from the Veteran's active duty service fail to reflect that he suffered from hearing loss of the left ear, for VA purposes.  The Veteran himself also denied suffering from hearing loss or ear trouble in August 1974 - approximately 6 years after his separation from active duty.  Audiometric findings performed at this time also reflected that pure tone thresholds did not meet the definition of hearing loss for VA purposes.  See 38 C.F.R. § 3.385.  Audiometric findings were again within normal limits upon examination in August 1978 and October 1982, and the Veteran denied having, or ever having had, hearing loss or ear trouble in his reports of medical history associated with these examinations.  There is no evidence of left ear hearing loss, for VA purposes, until 1984 - approximately 14 years after separation from active duty.  When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence).  In the present case, the lack of complaints for hearing loss of the left ear, despite multiple examinations in which he was provided the opportunity to report hearing loss, tends to suggest that hearing loss did not exist since the Veteran's active duty.  

Furthermore, audiometric testing performed from 1984 through 1990 failed to confirm that the Veteran in fact had pure tone thresholds illustrative of left ear hearing loss, for VA purposes.  It is not until April 1995 that the record again reflects pure tone threshold values that demonstrate a left ear hearing loss disability for VA purposes.  The VA examiner of November 2008 subsequently opined that the Veteran's left ear hearing loss was not caused by noise exposure during active duty.  The examiner explained that the Veteran's left ear pure tone thresholds were within normal limits as of December 1972 - approximately 4 years after his separation from active duty.  As such, the preponderance of the evidence of record demonstrates that the Veteran's current left ear hearing loss did not manifest during, or as a result of, active military service.  

The Board recognizes that the April 2008 VA audiologist opined that it was at least as likely as not that the Veteran's hearing loss was caused by noise exposure during active duty.  It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  In the present case, the Board finds the opinion of the November 2008 VA examiner to be more probative.  The examiner reviewed the Veteran's service records and specifically noted that the Veteran had normal left ear hearing some 4 years after his separation from active duty.  While the April 2008 VA audiologist noted that the records were reviewed, the audiologist failed to mention or discuss the fact that the Veteran had normal left ear hearing for years following his separation from active duty.  As such, the Board is more persuaded by the opinion offered by the November 2008 VA examiner.  

The Board also recognizes that the Veteran reported continued noise exposure during his National Guard service and that National Guard records reflect left ear hearing loss as early as March 1984 (although such findings were not confirmed upon subsequent evaluation in 1986).  Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or for injury incurred in or aggravated while performing inactive duty for training (INACDUTRA).  38 U.S.C.A. §§ 101(24), 106, 1110, 1131.  In other words, service connection is available for injuries but not diseases sustained on INACDUTRA.  Brooks v. Brown, 5 Vet. App. 484 (1994).  While hearing loss is a disease, acoustic trauma sustained during a period of ACDUTRA or INACDUTRA would constitute an injury for the purposes of these laws and regulations.  The record contains no evidence, however, of a disease or injury during a period of ACDUTRA, or an injury during a period of INACDUTRA that resulted in hearing loss of the left ear.  Again, the Board highlights that the Veteran had an administrative MOS during his reservist service.  Essentially, there is no indication that his current left ear hearing loss is due to a disease or injury incurred during his reservist service.

Finally, the Board recognizes that the Veteran believes his current left ear hearing loss is related to military service.  When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  The Veteran has stated that he has suffered from hearing loss since his active military service.  While the evidence of record supports his claim as it pertains to right ear hearing loss, audiometric findings for some 14 years following separation from active duty reflects normal left ear hearing.  The Board recognizes that the Veteran has alleged left ear hearing loss since military service.  However, the Board does not find this to be credible given that the Veteran denied hearing loss or ear trouble for several decades following his separation from active duty in 1968.  The record contains no evidence to suggest that the Veteran is otherwise competent to relate his current left ear hearing loss to military service, despite the lack of chronic symptomatology for decades following separation from active duty.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for hearing loss of the left ear must be denied.

Tinnitus

The Veteran also contends that he is entitled to service connection for tinnitus.  However, as outlined below, the preponderance of the evidence of record demonstrates that this condition did not manifest during, or as a result of, active military service.  

As discussed above, the Veteran did not complain of tinnitus during his active military service.  He subsequently denied ear trouble on multiple occasions during National Guard examinations for more than 20 years following separation from active duty.  It is not until a November 2005 audiology evaluation that the Veteran reported "occasional tinnitus."  

The Veteran's November 2008 VA examination report reflects that he began noticing a buzzing sound in his ears some two to three years earlier.  The Veteran also described the episodes as infrequent, occurring approximately once per month and lasting for approximately one minute.  Based on this evidence, the examiner opined that it was less likely than not that the Veteran suffered from tinnitus that manifested during, or as a result of, active military service.  

The Board recognizes that the Veteran explained in his February 2009 notice of disagreement that he was actually telling the examiner that his tinnitus was diagnosed two or three years earlier.  He had in fact always had problems with his tinnitus and it was constant.  The Veteran also testified in April 2012 that he suffered from tinnitus since he was in the Navy.  While tinnitus is something the Veteran is certainly competent to offer testimony about, the Board does not find his statements in this regard to be credible.  The Board again highlights that the Veteran routinely denied trouble with his ears for decades following separation from active duty.  In fact, he again denied ear trouble in a report of medical history from as recently as April 1995.  The Board finds the Veteran's consistent reports of no ear trouble for decades following active duty to be more reliable than his recollections offered nearly 40 years later. 

In addition, the Veteran testified during an April 2012 DRO hearing that his tinnitus was first noticed some 10 to 15 years earlier.  When asked if he was suggesting that his tinnitus did not arise during active service with the Navy or the Air Force, the Veteran agreed.  It was not until after the Veteran's representative explained to the Veteran that a 10 to 15 year history would have negative ramifications on his claim for service connection that the Veteran finally agreed that his tinnitus was first noticed when he got out of the Navy.  In light of this testimony, in conjunction with the explicit denial of ear trouble for decades following separation from active duty, the Board must find the Veteran's recent assertions of tinnitus since active duty to lack credibility.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for tinnitus must be denied.


ORDER

Service connection for hearing loss of the left ear is denied.  

Service connection for tinnitus is denied.  


REMAND

Finally, the Veteran contends that he is entitled to service connection for degenerative joint disease of the knees, bilaterally.  Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran asserts that he injured both of his knees in a fall while on annual training in June 1989.  Although he admits that he did not immediately seek treatment for his injuries, the Veteran submitted a December 2009 statement from a fellow service-man with the initials T.B, who claims to have knowledge of the Veteran's injuries.  In his statement T.B. relayed that he was on training with the Veteran in Austin, Texas in June 1989.  He indicated that while he did not see the Veteran fall, he could see by looking at his knees that he had fallen because they were very red.  The Veteran also started limping and he was having problems with his right leg the following morning.  

During his April 2012 DRO hearing, the Veteran testified that he let his knees go until he was ready to retire in 1999, and at that point, he sought private medical treatment.  

The private medical evidence of record does show treatment for injuries sustained to the knee.  According to a December 1982 private treatment record, the Veteran worked for the city and had been playing some basketball and baseball.  He developed some pain in his left knee.  A follow-up note from January 1983 reflects that the Veteran had less pain in his left knee.  However, the Veteran noted twisting his knee later in January 1983, but a February 1983 record reflects he was having less pain and the knee looked better.  The record does not reflect further treatment of the left knee for a number of years.  

An August 1990 private record reflects that the Veteran was suffering from pain in his left knee and left shoulder.  The Veteran reported that he injured both while playing football in June 1990.  The Veteran denied any previous serious injuries at this time.  Examination of the left knee revealed no effusion and the knee was deemed essentially normal.  A diagnosis of left knee strain was assigned at this time.  A follow-up magnetic resonance image (MRI) taken approximately two weeks later revealed intermeniscal signals on the lateral meniscus consistent with early degenerative changes.  However, there was no definitive evidence of a tear.  

In October 1990, the Veteran reported continued knee pain.  He also endorsed pain in his right knee as well.  The physician discussed other testing options with the Veteran, but indicated that previous testing had indicated no intrinsic pathology.  A February 1991 record reflects that the Veteran injured his knee in July 1990 while playing softball in the Army.  The Veteran reported that he suffered a lot of swelling in the left knee but that he did not have this injury attended to.  The Veteran endorsed intermittent trouble with the left knee since that time.  The Veteran was diagnosed with early changes of chondromalacia secondary to wear and tear, with nothing acute and no ligamentous instability.  

The Veteran again reported knee problems in April 1991, and various treatment options were discussed with him at this time.  An August 1991 record reflects that the Veteran had decreased his physical activity, aside from the running and walking he needed to do in order to maintain his physical fitness for the Army.  

In March 1992, the Veteran reported problems with his knees on an almost daily basis.  He wanted a letter addressed to the National Guard for exclusions for the physical training.  The record contains a copy of this letter, noting that the Veteran was to be excluded from running and frequent bending at the knees due to bilateral degenerative joint disease.  The record also contains a National Guard periodic physical dated April 1995.  The Veteran reported occasional left knee pain.  It was noted that a civilian orthopedist had diagnosed osteoarthritis.  The Veteran denied any other problems at this time.  The Veteran was noted to be a healthy male with mild degenerative joint disease of the left knee.  

A February 2004 record from the Sheppard Air Force Base reflects that X-rays taken in 2002 revealed severe degenerative joint disease of the left knee.  These findings were confirmed upon X-ray in May 2004.  A June 2008 X-ray confirmed severe osteoarthritis in the right knee as well.  

In light of the above, the Board finds that the Veteran must be scheduled for a VA examination before appellate review may proceed.  As discussed in the previous section, service connection is available for injuries sustained on ACDUTRA or INACDUTRA.  Brooks v. Brown, 5 Vet. App. 484 (1994).  The Veteran reported an injury in June 1990 while playing football.  A February 1991 record reflects that the Veteran injured his knee in July 1990 while playing softball in the Army.  These records were prepared more than 15 years prior to the date of receipt of the Veteran's claim and there is nothing of record to call into question their credibility.  Furthermore, in December 2009 statements from the Veteran and a fellow soldier, it was noted that the Veteran suffered a knee injury in June "1989" while on a two week tour of annual duty.  The record also confirms that the Veteran was in training in Wichita Falls, Texas from June 17, 1989, to July 1, 1989.  As such, there is, at a minimum, evidence of an injury to the knees sometime between 1989 and 1990 during the Veteran's reservist service.  The Veteran should be scheduled for a VA examination so that it can be determined whether it is at least as likely as not that he suffers from a disability of the left knee, the right knee, or both knees that manifested as a result of an injury sustained while on inactive duty for training.

As a final matter, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease (1) existed before acceptance and enrollment and (2) was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304.  The presumption of soundness does not apply to any periods of ACDUTR or INACDUTRA.  See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  The Board notes that a number of active duty examination reports and Army Reserves examination reports reflect a prior fracture of either the right or left leg - the actual leg involved is not consistently noted.  Several reports also suggest that this fracture occurred during childhood and was a complication of osteomyelitis.  A March 1990 examination report also notes that the right lower extremity was abnormal at this time due to right calf atrophy.  A scar of the right shin was also noted, secondary to osteomyelitis.  None of the evidence of record, however, reflects that a knee condition was identified prior to any period of active duty, ACDUTRA or INACDUTRA.  As such, there is no evidence of a prior knee condition prior to the injury that took place in or around 1989 or 1990.  Therefore, the Veteran is presumed to be sound in regards to his bilateral knees for his periods of active duty service.  See Biggins, 1 Vet. App. 474 (holding that presumptive periods do not apply to periods of ACDUTRA or INACDUTRA service); see also Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010) (holding that the presumption of a sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). 

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be scheduled for a VA examination before an appropriate physician to determine the nature and etiology of his bilateral knee disabilities.  The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) and a copy of this remand must be provided to the examiner for review and the examination report should reflect review of these items.  The examiner is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran suffers from a left knee disability and/or right knee disability that manifested as a result of an injury that occurred in 1989 or 1990.  The Board notes that the Veteran's report of an injury in or around 1990 appears to be credible, and the examiner should treat this assertion as such.  

A complete rationale must be provided for all opinions offered and the examiner should fully consider and discuss the lay assertions of the Veteran, including complaints of knee pain since his injury in service.  

2.  The RO/AMC should then review the claims file and all additional development to ensure that the mandates of this remand have been satisfied.  If additional development is deemed necessary, to include obtaining any outstanding medical records, these steps should be taken prior to returning this case to the Board.  

3.  After completion of the above, the claims should be reviewed in light of any new evidence.  If the claims are not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
DELYVONNE M. WHITEHEAD
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs