Citation Nr: 1803293 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-30 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington 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 osteoarthritis. 4. Entitlement to service connection for right knee osteoarthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1972. He had additional service in the Marine Corps Reserve with unverified periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2016, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The issues of entitlement to service connection for right and left knee osteoarthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's bilateral hearing loss is causally related to noise exposure during active service. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran's tinnitus is causally related to noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus are being granted herein. Accordingly, VA's duties to notify and assist with respect to these issues are deemed fully satisfied. There is no prejudice to the Veteran in proceeding to decide these issues. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are qualifying chronic diseases as they are organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). As a result, service connection via the demonstration of continuity of symptomatology is applicable. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2017). During the VA examination in December 2012, the examiner noted the Veteran's current diagnosis of bilateral sensorineural hearing loss meeting the threshold requirements for hearing loss under 38 C.F.R. § 3.385. The examiner also noted the Veteran's current complaints of tinnitus. The requirements of Shedden element (1) have been met. The Veteran attributes his current hearing loss and tinnitus to in-service noise exposure. The Veteran's Certificate of Discharge, Form DD-214 documents his military occupational specialty of radio repairman which indicates at least moderate in-service exposure to noise. See Duty MOS Noise Exposure Listing Spreadsheet, M-21.III.iv.4.B.4.e. The Board concedes in-service noise exposure as consistent with the circumstances of the Veteran's service. 38 U.S.C. § 1154(b). Accordingly, the requirements of Shedden element (2) have been met. Finally, in light of the record and the governing legal authority, the evidence is at the very least in equipoise on the question of a nexus, or Shedden element (3). The December 2012 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or a result of military noise exposure. The rationale was that the Veteran's service treatment records show no significant changes in hearing during active duty. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). During the September 2016 hearing, the Veteran explained that he noticed hearing loss and tinnitus immediately following service. He indicated that his wife regularly said that he would ask her to repeat herself from the time he got out of service. The Veteran's marriage certificate indicates that he was married in June 1971, prior to his discharge from active duty. Despite the negative nexus opinion from the VA examination, the Board finds the competent and credible statements of the Veteran as to ongoing hearing loss and tinnitus since service to be of equal weight as the medical opinion. In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of sensorineural hearing loss and tinnitus, and the credible lay assertions of record, the Board finds the medical evidence is at least in relative equipoise regarding these issues. When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND The Veteran's post-service treatment records note a diagnosis of osteoarthritis of the bilateral knees and a right total knee arthroplasty. The Veteran reported injuring his knees in a 1970 motorcycle accident during active service and when he fell 8 feet during a rock-climbing training in 1977 during ACDUTRA service. Both of these incidents are noted in the Veteran's service treatment records. Such is sufficient to satisfy the low threshold established in McLendon to require a VA examination and opinion regarding the etiology of the Veteran's claimed bilateral knee disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, the RO should take appropriate steps to secure any outstanding relevant VA and private treatment records and associate all obtained records with the claims file. 2. After completing the above development to the extent possible, schedule a VA examination to address the nature and etiology of the Veteran's claimed bilateral knee disabilities. The claims folder, including a copy of this remand, should be provided to the examiner for review. Any indicated studies should be performed. Then, the examiner should respond to the following: (a) Diagnose any disability of the right and/or left knees that presently exists or has existed during the pendency of the Veteran's claim, to include osteoarthritis. (b) For each disability diagnosed, is it at least as likely as not (a probability of 50 percent or greater) that the disability (1) had its onset during active service, (2) is related to any in-service disease, event, or injury, or (3) that arthritis manifested within one year of the Veteran's active duty? Consideration should be given to the Veteran's reports of knee pain after a January 1970 motorcycle accident, knee swelling after falling 8 feet while rock-climbing in July 1977, and knee pain related to marching and carrying ruck sacks during long marches and hikes during active service. Additionally, the examiner should note the Veteran's statements of experiencing right knee pain intermittently since his discharge from active duty. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In doing so, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then readjudicate the claims on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative and allow the appropriate time to respond. Then return the claim 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs