Citation Nr: 1804547 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-17 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from August 2000 to February 2001, from March 2003 to August 2003, and December 2005 to November 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in in Muskogee, Oklahoma. In June 2017, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. FINDINGS OF FACT 1. The Veteran's tinnitus is the result of noise exposure during active service. 2. The evidence of record, including an June 2013 VA medical opinion, shows that right knee chondromalacia is related to active service. 3. The evidence of record, including an June 2013 VA medical opinion, shows that left knee chondromalacia is related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for right knee chondromalacia have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for entitlement to service connection for left knee chondromalacia have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for a claimed disability, there must be (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) evidence, generally medical, of a relationship between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2017); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for arthritis may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). A disability that is proximately due to or the result of a service connected disability shall be service-connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In that instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). The first requirement for any service connection claim is evidence of the presence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Tinnitus The Veteran contends that he is entitled to service connection for tinnitus, as tinnitus is the result of noise exposure while in service. During the June 2017 hearing the Veteran testified the most intense exposure was during his time as a member of a cannon crew. During that time, the crew unit was struck by lightning and the Veteran experienced of ringing of the ears for at least three days, but did not seek treatment. In a June 2013 VA examination, the Veteran was noted to have a diagnosis of bilateral hearing loss and tinnitus. The examiner opined that the Veteran's tinnitus was at least as likely as not caused by or related to service noise exposure. The rationale provided was that exposure to excessive noise from service weaponry and explosions could likely lead to tinnitus. The June 2013 examination was subsequently sent for an addendum opinion to allow the examiner the chance to review the claims file prior to providing an opinion. In an August 2013 addendum opinion, a different examiner opined that tinnitus was not related to active military service. The rationale provided was the lack of complaints for tinnitus during service. The basis of "lack of evidence during active service," alone, is not sufficient to determine that a disability is not related to service or could not have manifested thereafter as a result of service. As a result, the Board finds that examination to be of little probative value. The Veteran has provided credible testimony the he experienced tinnitus during service and that the tinnitus continues to the present. The Board concedes in service exposure to noise, and finds that the Veteran has provided credible testimony of a continuity of symptomatology. Based on the lessened probative value given to the August 2013 addendum opinion, the Board finds that the evidence for and against the claim is at least in equipoise. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Bilateral Knee Chondromalacia The Veteran contends that he is entitled to service connection for bilateral knee chondromalacia, as the claimed condition is the result of working as an artillery cannon crew member while in service. During the June 2017 hearing, the Veteran testified that during his time in service he hurt his knees while disembarking large vehicles, and shooting artillery with heavy loads. In a February 2013 statement the Veteran stated that he was required to load and fill 100 to 175 pounds in and out of 5 to 7 ton vehicles. Over time, the Veteran believes that caused the knee pain. In a June 2013 VA examination, the examiner opined that the Veteran's right knee chondromalacia was at least as likely as not related to service. In support of that opinion, the examiner highlighted complaints of knee pain made by the Veteran while in service. The examiner noted that extensive physical demands of service responsibilities can cause joint stress with chronic strain and joint abnormalities with the current condition. In the portion of the examination regarding the left knee, the examiner checked the box indicating that the Veteran's left knee chondromalacia was less likely as not related to service. However, in the rationale portion of the examination report, the examiner provided the same rationale as what was provided for the right knee. That rationale also included the statement that "yes, knee condition is as least as likely as not related to complaint of pain after running in service." The Board observes the examiner's negative opinion regarding the left knee to be an error. It appears that the examiner marked the wrong box because the same positive rationale was provided for the left and the right knee. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for bilateral knee chondromalacia have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right knee chondromalacia is granted. Entitlement to service connection for left knee chondromalacia is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs