Citation Nr: 1803988 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-19 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to an initial compensable rating for left knee patellofemoral pain syndrome. 4. Entitlement to an initial compensable rating for residuals of a right wrist scaphoid fracture. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1994 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The issue of entitlement to service connection for tinnitus is addressed below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Tinnitus had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an 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 (Fed. Cir. 2004). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309, such as organic diseases of the nervous system (tinnitus). 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (considering tinnitus as an organic disease of the nervous system). The Veteran asserts that his tinnitus is due to his in-service noise exposure as a mechanic on the flight line, and that he had had continuous ringing in the ears since service. See October 2013 Statement in Support of Claim and January 2017 Board Hearing Transcript at 3-5. Regarding element one, current disability, the Veteran has a current diagnosis of tinnitus. He competently reports tinnitus in his lay submissions and to a VA examiner. In this regard, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Regarding the second element of service connection, the Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was P-3 maintenance technician, and the Board finds the Veteran's report of excessive noise exposure on the flight line during active duty consistent with the circumstances of his service and MOS, particularly since he reported hearing loss at service separation. See 38 U.S.C. § 1154(a). Thus, an in-service injury in the form of acoustic trauma is shown. Thus, this appeal turns on whether there is a nexus between the Veteran's tinnitus and service. The Veteran has competently and credibly reported that he has continued to experience recurrent ringing in his ears during and since service due to the in-service acoustic trauma. See January 2017 Board Hearing Transcript at 3-5. The Board therefore finds his assertions that tinnitus was first incurred in service and has been present continuously since service credible. 38 C.F.R. § 3.303(b); see also Walker, supra. Thus, elements two and three of service connection are established. The Board recognizes that the May 2013 VA examiner stated that she could not provide a medical opinion on the Veteran's tinnitus without resorting to speculation, as determining the etiology of tinnitus in absence of hearing loss requires an examiner with a specific type of expertise she did not possess. However, as noted above, the Veteran is competent to report when he first observed tinnitus, and his reports in this regard are credible. Accordingly, the Board assigns this negative VA opinion no probative value. In sum, the most probative lay evidence of record reflects that the Veteran has tinnitus that was incurred in service. Thus, service connection is warranted. ORDER Service connection for tinnitus is granted. REMAND Regarding the Veteran's left knee and right wrist disabilities, the Veteran testified that these disabilities have worsened since his last VA examinations, which were conducted in November 2014. See January 2017 Board Hearing Transcript at 14, 20, 22, 27, 37. Updated VA examinations that comply with 38 C.F.R. § 4.59 are therefore warranted on remand. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). As to the Veteran's right knee disability, he asserts that he incurred this disability during service when he fell off a P-3 aircraft and sustained injuries to both knees. He maintains that his knees were swollen and painful following the incident and he has had continuous bilateral knee problems since service, including having to switch jobs and no longer being able to squat. See March 2013 Veteran Statement in Support of Claim and January 2017 Board Hearing Transcript at 24, 27. The Veteran was afforded VA knee and lower leg examinations in October 2012 and November 2014. The October 2012 VA examiner related bilateral knee patellofemoral pain syndrome to service, but the examiner did not review the claims file and based the opinion on an inaccurate factual premise (treatment of patellofemoral pain syndrome in service). The November 2014 VA examiner diagnosed the Veteran with right knee patellofemoral pain syndrome and right knee degenerative/traumatic arthritis and opined that it is not at least likely as not that his right knee disability is service related. The examiner reasoned that the Veteran "was not seen in the review of the record for the right knee", that his physical labor post-service jobs caused his right knee pain, and that his degenerative changes are an expected progression of the patellofemoral pain syndrome with his "continued work." However, the examiner failed to take into consideration and address the Veteran's lay statements that he injured his right knee when he fell off an airplane in service. Thus, on remand an addendum opinion is needed. Any outstanding VA treatment records should also be secured on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Then schedule the Veteran for a VA examination to determine the current nature and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's left knee due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right wrist disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's right wrist due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then obtain an addendum opinion from the November 2014 VA examiner (or other qualified examiner, if unavailable) to determine the etiology of the Veteran's right knee disability. The entire claims file should be made available to and be reviewed by the examiner, including a copy of this remand, and it should be confirmed that such records were reviewed. No additional examination is necessary, unless the examiner determines otherwise. The examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability had its onset in service or is otherwise etiologically related to his active military service, to include (a) as a result of falling off of a P-3 aircraft in service; and/or (b) as a result of the cumulative impact of his duties as a mechanic on the flight line. For purposes of providing this opinion, please acknowledge and address the Veteran's endorsement of swollen and painful joints at separation, as well as his credible reports of his in-service right knee injury, complaints about his right knee in service for which he was given Motrin, and continuous right knee problems during and since the in-service injury, including having to switch jobs and no longer being able to squat. See January 2017 Board Transcript at 24-27. A complete rationale must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs