Citation Nr: 18149555 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-08 111 DATE: November 9, 2018 ORDER Service connection for a right knee disability, to include chondromalacia and patellofemoral arthritis, is granted. Service connection for left knee disability, to include chondromalacia and patellofemoral arthritis, is granted. Service connection for bilateral sensorineural hearing loss is granted.   FINDINGS OF FACT 1. The Veteran’s right knee disability is related to his active service. 2. The Veteran’s left knee disability is related to his active service. 3. The Veteran’s bilateral sensorineural hearing loss is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. § 3.303. 2. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. § 3.303. 3. The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1981 to September 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In March 2016 and July 2017, the Board remanded the Veteran’s claims for additional development. The Veteran has indicated that he has had difficulty securing employment since his military service. See June 2016 Veteran Statement. If he believes that his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment, he is encouraged to file a claim on the appropriate VA-promulgated form. Service Connection 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. § 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic disabilities, such as arthritis and sensorineural hearing loss, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. See 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Service connection for a right knee disability is granted. 2. Service connection for a left knee disability is granted. The Veteran asserts that his knee disabilities are due to his military service, including the cumulative impact of years of playing full-contact football, as well as his work servicing aircraft. See June 2016 Veteran Statement. He states that although he suffered several injuries playing football, “if I could still move it wasn’t something I went to the doctor for.” Hearing Transcript at 12. Moreover, he reports that he has experienced knee pains bilaterally since his military service through the present. See, e.g., September 2006 and March 2010 Treatment Notes; Hearing Transcript at 12. The Veteran’s service treatment records (STRs) are devoid of treatment for knee injuries. However, the evidence of record shows treatment for numerous substantial injuries of other body systems caused by playing football, including fractures and concussions resulting in loss of memory. See STRs. Despite these documented injuries, the Veteran consistently denied any history of injuries during service and at separation. See STRs (Reports of Medical History). The Veteran’s MOS was aircraft mechanic. See DD Form 214. The evidence of record indicates that after his service, he worked as a municipal code enforcer in the early 2000’s, and that in or about 2011 he began working for Lockheed as an aircraft mechanic. See Hearing Transcript at 6 (working for municipality); May 2005 & September 2007 Treatment Notes (working as municipal code enforcer); May 2016 Dr. R.K. Opinion (began working for Lockheed in or about 2011). The Veteran has current bilateral knee diagnoses, including osteoarthritis and bilateral knee chondromalacia. See April 2016 VA Examination Report; May 2016 Dr. R.K. Opinion. His STRs demonstrate that he played full-contact football during service, and he reports having had knee pain since service. See STRs; Hearing Transcript at 12. Thus, the Board finds that the first and second elements of service connection are met, and the Veteran’s claims turn on whether there is a nexus linking his service to his knee conditions. In this regard, the Board notes that the Veteran’s report of bilateral knee pain since service is consistent with the places, types, and circumstances of his service, to include his history of football injuries, as shown in the Veteran’s service record, medical records, and by his testimony. See 38 U.S.C. § 1154. There is competent medical evidence both in favor of and against the claim. In favor of the claim is the May 2016 opinion of Dr. R.K., the Veteran’s private orthopedist. Against the claim is the April 2016 opinion of a VA examiner, as well as his September 2017 addendum opinion. In May 2016, the Veteran provided an opinion from Dr. R.K., his private orthopedist. Dr. R.K. noted that he treated the Veteran for knee pain in 2011. He stated that in 2011 the Veteran reported that his knee pain preceded his work at Lockheed, as he first worked at Lockheed in 2011 and he had experienced bilateral knee pain since his separation from the military in 1988. Dr. R.K. noted that his review of the Veteran’s knee X-rays from 2012 appeared relatively benign, but that knee MRIs from January 2012 were consistent with severe, high-grade chondromalacia of both patellofemoral joints. Dr. R.K. diagnosed the Veteran with probable bilateral patellofemoral arthritis, and opined that “I am sure, since he had pain in the military, [that his pain] stem[s] from his pre-Lockheed time period and so I would say that there is a high degree of medical certainty that the pain in his knees and the resultant chondromalacia are related to his military career.” May 2016 Dr. R.K. Opinion. The Board finds that Dr. R.K.’s opinion is entitled to substantial probative weight. He is the Veteran’s regular orthopedist, and as such he has a more thorough understanding of the Veteran’s condition than a clinician that examined the Veteran on a single occasion. Critically, Dr. R.K. based his opinion on all the available evidence, including the Veteran’s competent and credible reports of his symptoms since separation from service, as well as all available medical evidence. In this regard, the Board notes that after reviewing both the Veteran’s MRI findings and his X-rays, Dr. R.K. described chondromalacia that was not apparent on the Veteran’s X-rays, and thus had a more complete understanding of the Veteran’s knee conditions. The Veteran presented for a VA examination in April 2016. The examiner diagnosed the Veteran with bilateral knee osteoarthritis, with an uncertain date of onset. The Veteran reported that he “took the pain and continued working” during service, despite having to crawl on his knees to service aircraft without knee pads, and that he played football in service. The examiner noted that the Veteran was first seen for knee pain in 2012 while working for Lockheed, which required him to be on his knees. The examiner opined that the Veteran’s knee arthritis was less likely than not related to his service, as 1) there was no evidence that the Veteran had knee problems in service, 2) the Veteran denied lower extremity problems at a 1988 medical examination, 3) there was no evidence that the Veteran was treated for knee problems after service, 4) the Veteran was first treated for knee problems in 2012 after injuring his knees working for Lockheed, and 5) the Veteran’s knee conditions are “mild and consistent” with his age. See April 2016 VA Examination Report. In September 2017, the same VA examiner provided an addendum opinion. The examiner opined that despite Dr. R.K.’s opinion that the Veteran’s bilateral knee conditions are related to his military service, “[t]he flaw in this statement is that it does not take into account the fact that the [Veteran] worked from 1988 to 2016, a period of 28 years, doing the same work as in the military. He worked then and now as an aircraft mechanic. Also pertinent is that he marked ‘no’ to lower extremity problems in his medical exam in 1988, indicating that [any knee injuries] resolved. What probably happened is that in the service he had an overuse syndrome resulting in patellofemoral pain. Overuse syndromes resolve and such happened. He then, for 28 years, worked as an aircraft mechanic and this has resulted in knee problems. Age also played a part.” The examiner concluded that “the opinion I expressed in April 2016 has not changed.” September 2017 VA Addendum Opinion. The VA examiner’s opinion is not entitled to any probative weight. Critically, the examiner’s April 2016 opinion and September 2017 addendum opinion are not based on review of all the relevant evidence of record, as the Veteran sought knee treatment in 2006, where he mentioned a longstanding history of “bad knees” related to an old and untreated football injury. See September 2006 Treatment Note. The Board observes that this treatment occurred two years before the Veteran filed his VA claim, and six years before the VA examiner stated that he first sought treatment. Moreover, in his September 2017 addendum opinion, the VA examiner reasoned that the Veteran’s reported history of knee pain was caused by his having worked as an aircraft mechanic for 28 years, despite the fact that the Veteran had only resumed working in that occupation around 2011. Additionally, the VA examiner failed to discuss Dr. R.K’s diagnosis of severe, high-grade chondromalacia observed in MRI findings, and instead only discussed the Veteran’s arthritis. As all the probative medical evidence of record is in favor of the Veteran’s claim, the Board finds that there is no reasonable doubt to resolve, and further finds that the Veteran’s right and left knee disabilities are related to his service. 3. Service connection for bilateral sensorineural hearing loss is granted. The Veteran reports that his hearing loss has gradually worsened since service, and that his hearing disability was initially manifested by ringing in the ears shortly before discharge. See Hearing Transcript at 9; see also December 2012 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). He attributes his hearing disability to his military service, including his work around aircraft, and reports that the symptoms of hearing pathology that he noticed during service were “the ringing in my ears [and] migraine headaches.” See June 2016 Veteran Statement at 4. The evidence of record includes audiograms from April 1981, March 1983, December 1985, February 1987, and May 1988. There is a small, generally positive change in certain thresholds measured between the Veteran’s entrance audiogram and his May 1988 audiogram, but none of the audiograms show sufficient hearing loss to constitute a disability for VA purposes. See 38 C.F.R. § 3.385. The Veteran separated from service in September 1988, more than 90 days after his separation examination. See DD Form 214. He did not provide a statement that his medical conditions had not changed since his May 1988 examination. See STRs. The Veteran’s post-service medical records indicate that he was treated outside of the VA health system in late 2005 following a decrease in hearing in his right ear. In October 2005, the Veteran explained to his clinicians, Dr. D.A. and audiologist J.F., that his right ear had been ringing for many years, and that he believed that his ears were injured while serving as an aircraft mechanic in the military. He reported that his left ear was asymptomatic. Audiological testing revealed severe hearing loss in the Veteran’s right ear, and slight high-frequency hearing loss in his left ear. The Veteran had follow up appointments with Dr. D.A. and J.F. in November 2005 and July 2006. See October 2005, November 2005, and July 2006 Treatment Notes. The Veteran presented for a VA hearing loss and tinnitus examination in December 2012. He reported that he first noticed his hearing loss in the early 1990s, and that his hearing loss had progressively worsened. The examiner, a VA audiologist, diagnosed the Veteran with recurrent tinnitus and bilateral sensorineural hearing loss, with profound unilateral (right) sensorineural hearing loss. The examiner opined that the Veteran’s tinnitus was less likely than not associated with hearing loss, and more likely than not caused by or a result of military noise exposure, as the Veteran reported onset of tinnitus towards the end of service and he worked in a high-noise environment servicing aircraft. The examiner was unable to opine as to the origin of the Veteran’s hearing loss without resorting to speculation. See December 2012 VA Hearing Loss and Tinnitus DBQ and Medical Opinion. At the Veteran’s October 2015 Board hearing, he testified that his hearing problems began in service, as his tinnitus began shortly before his discharge. Hearing Transcript at 9. He further testified that his hearing problems have worsened since they began in service, and his wife testified that the Veteran’s hearing problems progressively worsened since they were married in 2005. Hearing Transcript at 7, 9. In March 2016, a VA audiologist provided an addendum opinion concerning the etiology of the Veteran’s hearing loss. The audiologist opined that the Veteran’s bilateral hearing loss was less likely than not related to his military service, citing a 2005 Institute of Medicine (IOM) study for the proposition that delayed-onset hearing loss due to military noise exposure was unlikely. The audiologist also remarked that the Veteran’s tinnitus was most likely not due to noise exposure, as the Veteran’s service audiograms did not show that he experienced a noise injury in-service. See March 2016 Addendum Opinion. In April 2016, the Veteran submitted an opinion from J.F., the audiologist associated with the Veteran’s private 2005 treatment for hearing loss and a 2006 audiological examination and hearing aid evaluation. The audiologist opined that based on the audiological examination in 2006, as well as the Veteran’s case history at the time of that examination (i.e., his history of military noise exposure and the timing of the onset of his tinnitus reported in 2005), the Veteran’s bilateral hearing loss “is at least 50% due to his prior exposure to noise in the Air Force working on the flight line for 7 ½ years.” See April 2016 J.F., MCD, CCC-A Opinion. In July 2018, the March 2016 VA audiologist provided an addendum opinion concerning the etiology of the Veteran’s hearing loss. The audiologist explained that studies concerning delayed-onset hearing loss had come to differing conclusions, but that the 2005 IOM study concluded that delayed-onset hearing loss due to noise exposure was “unlikely.” He stated that he believed that studies showing delayed-onset hearing loss from noise exposure were inconclusive, because there were conflicting findings concerning delayed-onset noise-induced hearing loss in human studies, and because of the questionable generalizability of rodent studies to humans. The audiologist explained that because of these concerns, he believed that the statement in the 2005 IOM study that “there is no conclusive data supporting delayed-onset, noise-induced hearing loss” remained true, and that the current gold standard for determining whether auditory damage had occurred is a positive, permanent shift in auditory thresholds. He opined that as the Veteran’s in-service audiograms did not show a significant threshold shift, “there is no evidence on which to conclude that the veteran’s current hearing loss was caused by or a result of the veteran’s military service, including noise exposure.” The audiologist also noted that it was impossible to state with any degree of certainty the exact etiology of the Veteran’s current sensorineural hearing loss, because there are hundreds of possible causes of adult-onset sensorineural hearing loss. However, the audiologist stated that he could rule out military noise exposure as the cause of the Veteran’s sensorineural hearing loss, as the Veteran’s audiograms show that he did not experience a positive, permanent threshold shift during service. See July 2018 Addendum Opinion. The Veteran has a current diagnosis of sensorineural hearing loss, and he experienced conceded acoustic trauma due to military noise exposure during service. Thus, this appeal turns on whether there is a nexus between his current disability and his in-service noise exposure. The Board finds that, after resolving reasonable doubt in the Veteran’s favor, the Veteran’s bilateral sensorineural hearing loss is related to his active service. While the VA audiologist who provided the March 2016 and July 2018 addendum opinions indicated that the Veteran’s bilateral sensorineural hearing loss and tinnitus were not related to military noise exposure, as the Veteran’s service audiograms do not show a permanent threshold shift, the audiologist did not account for the Veteran’s 90+ days of service after his May 1988 separation examination and before his September 1988 discharge or the Veteran’s competent and credible testimony that his hearing pathology had its onset at the end of his service and that he experienced continuous, progressively worsening symptomatology through the present. See also December 2015 Hearing Loss DBQ (Veteran has “progressive sensorineural hearing loss”). This testimony is not contradicted by the evidence of record, as the Veteran did not certify at separation that his medical condition was unchanged since his last examination. Additionally, J.F., MCD, CCC-A opined that the Veteran’s bilateral sensorineural hearing loss is likely “at least 50% due to his [service].” In this regard, the Board finds that the VA examiner’s opinion that tinnitus would not occur due to noise exposure in the absence of a threshold shift, coupled with the Veteran’s testimony that his tinnitus occurred shortly before discharge, i.e., after his final audiogram but before separation, is consistent with the Veteran’s claim that his hearing problems began at the end of his service, i.e. after his May 1988 audiogram, and also weighs in favor of his claim. Thus, the Board finds that the criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel