Citation Nr: 1332279 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-11 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from June 1971 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri, which inter alia denied the claims on appeal. A review of the Virtual VA paperless claims processing system includes the Informal Hearing Presentation submitted by the Veteran's representative. The issue of service connection for left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus had its clinical onset in service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran is seeking service connection for tinnitus. The Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by granting his service connection claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Board allows the benefit sought on appeal, discussion of VA's compliance with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002 and Supp. 2011), would serve no useful purpose. II. Service connection for tinnitus Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2013). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). There were no complaints or findings of tinnitus in the service treatment records (STRs). Service personnel records confirm that the Veteran worked in aircraft maintenance and his claim of acoustic trauma in service is competent and credible. While the October 2008 VA audiology examination included a diagnosis of tinnitus, the examiner concluded that there was no evidence of acoustic trauma in service to associate with that diagnosis. However, the Board finds the Veteran's claim of acoustic trauma in service credible and supported by the circumstances of his service. He has consistently claimed that tinnitus began in service and tinnitus is the type of disability that can be identified by a lay person. Resolving all doubt in the Veteran's favor, tinnitus had its clinical onset in service. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for a tinnitus is allowed. REMAND Service treatment records dated in February 1973 reflect that the Veteran injured the left knee after slipping on an aircraft ladder. Clinical examination revealed swelling and tenderness of the knee. It was stable. X-rays of the knee in February 1973 and in April 1974 revealed normal findings. The knee was normal on separation examination in May 1979. January 2008 VA primary care treatment records reflect that the Veteran complained about mild left knee pain beginning three months ago. He denied any recent injury, but recalled having a dislocated knee in service. Clinical examination of the left knee was unremarkable. However, an X-ray confirmed osteoarthritis. The Veteran had an October 2008 VA examination with review of the claims folder. The examiner recited the pertinent history and current symptoms. Clinical examination showed reduced left knee motion, crepitus, and tenderness. X-rays showed mild to moderate degenerative changes. The examiner diagnosed left knee strain. She conceded that osteoarthritis could be related to prior injury. However, she was unable to provide a non-speculative medical opinion due to the length of time between injury and current complaint of knee pain and alternative causes of overuse, age, and excessive weight. The examiner was an advanced practical nurse and it is not clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition. See Jones v. Shinseki, 23 Vet. App. 382 (2010). STRs clearly document that the Veteran had a left knee injury. An in-service event has been demonstrated. A current disability of degenerative joint disease has also been demonstrated per January and October 2008 VA X-ray reports. Clarification of the October 2008 VA medical opinion is necessary under the circumstances. Accordingly, the case is REMANDED for the following action: 1. Refer this claim to a VA physician, preferably and orthopedist if available. The claims folder, including any pertinent documents from the Virtual VA and/or VBMS efolders, must be available to the examiner who must acknowledge receipt and review of these documents. Following review of the entire record, the examiner must express an opinion on whether there is a 50 percent probability or greater that any current left knee disability had its clinical onset in service or is otherwise related to active service. The examiner must provide a rationale to support the opinion and consider the inservice treatment for left knee injury. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so and cannot rely solely on an absence of contemporaneous medical treatment. If the examiner deems a clinical examination is necessary, such examination must be scheduled. 2. After completing the additional development, re-adjudicate the claim. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs