Citation Nr: 18142920 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-46 092 DATE: October 17, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT The Veteran’s tinnitus is reasonably related to noise exposure in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1986 to March 1987 and in the United States Air Force from September 1996 to April 1997 and from February 2003 to November 2003, with additional service in the National Guard with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Entitlement to service connection for tinnitus. The Veteran claims that he is entitled to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include tinnitus. See Fountain v. McDonald, 27 Vet. App. 258 (2016). The Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. The Veteran's DD 214s reflect that his military occupational specialties were petroleum supply specialist, avionics guidance and control systems apprentice, and integrated avionics systems journeyman. Concerning the extent of his exposure to loud aircraft engines while performing his service duties during his latter two periods of active service, the Board finds that the Veteran had harmful noise exposure during active duty. The Veteran asserts that he was exposed to constant noise pollution while working on aircraft during service. He contends that his tinnitus began several years ago and has continued. The Veteran asserts that his tinnitus is related to his noise exposure in service. The Veteran was afforded a VA examination in which the examiner concluded that any opinion he would offer as to whether it was at least as likely as not that the Veteran developed tinnitus because of his service would be merely speculative. In light of the fact that the Veteran’s report of harmful noise exposure is consistent with the circumstances of his service and his credible assertions of onset, the Board finds that the evidence is at least in equipoise and service connection for tinnitus is warranted. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to service connection for plica, suspect medial meniscus tear, left knee (claimed as a left knee condition) is remanded. The Veteran contends that he injured his left knee during his service in the National Guard. September 2008 private medical records show that the Veteran was seen for complaints of left knee pain that began three months earlier. He was assessed with sprains and strains of the knee. October 2008 service treatment records from the Veteran’s period in the Guard shows that he was seen for left knee pain. On October 3, 2008 he was put on a physical profile, L4, no running, prolonged standing or walking long distance. He was seen for left knee pain by a private physician and was assessed on October 9, 2008 with strain of lateral collateral knee ligament. Then, on October 16, 2008, a line of duty determination report shows that the Veteran sustained an injury to his left knee during “P.T. Test.” The LOD report also noted an existing injury was documented before October “UTA.” The investigation results determined that this left knee condition existed prior to service. A VA examination was performed in August 2014. X-rays were taken and the diagnosis was [l]eft knee, stable joint. Suspect medi[al] meniscus tear or [p]lica.” The opinion was that “[t]he condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” However, the VA examiner failed to address the line of duty determination noting that the Veteran injured his left knee in October 2008. Further, the VA examiner, while noting the findings of a left knee condition on x-ray, then stated that there was not definitive proof of the actual condition and that a magnetic resonance imaging (MRI) study might show the source of the Veteran’s left-knee “pain.” But no MRI was performed. In light of the above, the Veteran must be afforded a new VA examination to determine the nature and etiology of any diagnosed left knee disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination, with a medical professional who has not previously examined him, to determine the etiology of any diagnosed left-knee disability. Request the examiner to review the Veteran’s claims file, including a copy of this REMAND, and to note in the examination report that this review was performed. Request the examiner to elicit from the Veteran a history concerning any left-knee problems and symptoms in service. An MRI must be performed, as well as any other further testing deemed necessary. Thereafter, the examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left knee disability was: (a) caused or (b) aggravated (that is, permanently worsened) by any incident of his ACDUTRA/ INACDUTRA service, to include specifically addressing the injury noted in an October 2008 line of duty determination report. The term “at least as likely as not” does not mean “in the realm of possibility” nor does it mean “most likely” or “probable.” Rather, it means that the weight of the medical and lay evidence tending to support or refute the claim constitutes “an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.” 38 C.F.R. § 3.102. Lesley A. Rein Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel