Citation Nr: 18141962 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 13-16 868 DATE: October 12, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral knee condition is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, bilateral hearing loss had its onset in service. 2. Resolving reasonable doubt in the Veteran’s favor, tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1951 to May 1953. The Veteran is in receipt of the Korean Service Medal, United Nations Service Medal, and Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A statement of the case was issued in May 2013 ; the Veteran perfected his appeal, via a VA Form 9, in May 2013. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 Fed. Cir. 1996) (table). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to Service Connection for Bilateral Hearing Loss and Tinnitus The Veteran contends that service connection for bilateral hearing loss and tinnitus are warranted because he was suffered hazardous noise exposure during service and he noticed ringing in his ears and a decline in his hearing acuity in May 1953. With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2017). The Veteran’s separation examination, dated in May 1953, is silent as to hearing loss during service. Although hearing loss was not shown in-service, the Board acknowledges that acoustic trauma or military noise exposure may constitute an injury of the ear. Further, the Veteran was awarded the Combat Infantryman Badge, which is evidence of combat-related noise exposure. The Veteran’s March 2011 VA examination reveals the left ear with 98 percent speech discrimination and decibel (dB) losses of 10 dB at 1000 Hz, 15 dB at 2000 Hz, 30 dB at 3000 Hz, and 70 dB at 4000 Hz. The average decibel loss is 31 in the left ear. The right ear shows a speech discrimination of 98 percent and dB losses of 30 dB at 1000 Hz, 35dB at 2000 Hz, 45 dB at 3000 Hz, and 60 dB at 4000 Hz. The average decibel loss is 46 in the right ear. As such, this examination reveals that the Veteran has a hearing loss disability pursuant to 38 C.F.R. § 3.385 (2017). McClain v. Nicholson, 21 Vet. App. 319, 321 2007) (holding that the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). The examiner noted that because there was no evidence found in the claims folder regarding the Veteran’s hearing status prior to entering into the military, during military service, or upon release, a nexus could not be provided without mere speculation. 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). Since the Veteran has stated that he has ringing of the ears, the Board finds that he has a current diagnosis of tinnitus. During the pendency of the appeal, the Veteran has noted that he was exposed to loud noise during service; additionally, given the nature of the Veteran’s MOS, noise exposure is established. Further, the Veteran has stated that his hearing difficulties, to include ringing in the ears began during service, or very shortly thereafter in 1953. He has also reported to his treating physicians that he has experienced hearing loss and ringing in the ears as a result of in-service noise exposure. Specifically, in a July 2013 ENT examination report, the Veteran reported that this roaring tinnitus was the result of an explosion during the Korean War. The Veteran is competent to report that he worked with explosive devices and artillery during service as this is within his lay observation. Additionally, he is competent to report that his hearing problems began during service as this is within his lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the Board notes that the Veteran was service connected for peripheral vestibular disorder as a result of his exposure to explosions and related noises while in service. As to credibility of the Veteran’s statements, there are no contemporaneous service records, with the exception of his May 1953 Report of Medical Examination, which is available for review. His service treatment and personnel records were destroyed in a fire-related incident. See May 2011 Formal Finding of Unavailability of Service Records. When there is evidence that a Veteran’s service records have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). After applying VA’s heightened duty, the Board finds the Veteran’s reports of difficulty hearing and ringing of the ears since service to be credible. Given the Veteran’s competent and credible statements regarding onset of hearing problems in service, the Board affords his statements probative weight. Further, the Board finds that the evidence is at a minimum in equipoise as to whether the bilateral hearing loss and tinnitus had its onset in service. Thus, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus are warranted. REASONS FOR REMAND 1. Entitlement to a bilateral knee condition is remanded. While further delay is regrettable, the Board has determined that a remand is warranted to ensure that the Veteran receives full and fair consideration regarding his claims. The Board notes that the Veteran’s service treatment records were destroyed in the 1973 fire at the National Personnel Records Center. The only available service treatment record, a May 1953 Report of Medical Examination, reveals that his lower extremities were normal upon separation. The Board notes, however, that the Veteran has submitted a statement alleging that he first experienced bilateral knee symptoms during service, which he described began in May 1953 noting that he was treated in the service by an Army facility or doctor, and indicated continuity of symptomatology for his knee problems since service. The Veteran submitted an April 2010 private treatment record noting a gait imbalance. The Veteran’s outpatient treatment records, dated from July 2001 to January 2011, reveal a diagnosis and treatment for knee arthralgia. A private treatment record, dated in August 2011, reveals bilateral knee pain and a diagnosis of bilateral knee osteoarthritis. In view of the above evidence, and VA’s heightened duty to assist in this case due to the fire-related status of the Veteran’s service records, the Board finds the low threshold for obtaining a VA examination has been met in this case; a remand for an examination is needed to ascertain that nature and etiology of the Veteran’s knee disabilities. See 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The matter is REMANDED for the following action: 1. Ask the Veteran to identify the VA and private provider(s) of any and all evaluations and/or treatment he has received for his knees and to provide authorizations for VA to obtain records of any private treatment. Obtain for the record complete clinical records of all pertinent evaluation or treatment (records of which are not already associated with the record) from the VA and/or private providers identified. 2. Then, arrange for an orthopedic examination of the Veteran to determine the nature and etiology of his right and left knee disabilities. provide the Veteran with a VA orthopedic examination. The claims file is to be made available to the examiner to be reviewed in conjunction with the examination. All tests and studies deemed warranted should be conducted. The examiner should respond to the following: (a) Please identify (by diagnosis) each right knee and left knee disability found/shown by the record. (b) Please identify the likely cause for each right knee and/or left knee disability entity diagnosed, to include arthralgia and osteoarthritis. Specifically, is it at least as likely as not (a 50 percent probability or more) that any such disability began in service (or is otherwise related to) the Veteran’s military service? ***In this special context, while the service treatment records are not of record and while an injury or symptoms involving either knee is not documented in the service treatment records, the examiner is asked to consider the competent lay assertions of record, to include the nature, onset, and continuity of the alleged symptoms of both knees as described by the Veteran, and comment on whether any current pathology of the right and/or left knee, to include arthralgia and osteoarthritis, is consistent with the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner should explain why this is (or is not) so. If a right knee and/or a left knee disability shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. A complete rationale for any opinion offered should be provided. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel