Citation Nr: 18150159 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-40 878 DATE: November 14, 2018 ORDER Entitlement to service connection for a right knee condition is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The Veteran’s right knee disorder did not originate in service or within a year of service, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to May 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision. In July 2017 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires: (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Hearing loss is a chronic disease that is found to occur in service if it manifested to a compensable degree in active service or within one year of separation. 38 C.F.R. §§ 3.307, 3.309. When a chronic disease is shown in service, “subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.” 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence on an issue material to a determination, the VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that his right knee disability is related to his active duty service. The Veteran’s service treatment records (STRs) show that he did not have any in-service treatment for or complaints regarding his right knee. His June 1977 pre-induction examination did not find any symptoms or concerns regarding the Veteran’s right knee. Furthermore, his March 1981 separation report of medical examination also did not find or report any right knee concerns, symptoms, or complaints. In May 1993, a VA medical center (VAMC) medical record showed the Veteran to have presented with complaints that his right knee was bothering him. He stated that he twisted his knee two months prior and that it was swollen and painful. X-rays were noted to be within normal limits. He was diagnosed with a posttraumatic injury of his right knee. In September 1993, the Veteran reported that his right knee kept popping out and giving way. He reported it was painful to bend. Upon examination, it was noted he had a history of trauma of the right knee 6 months prior and since that time he had episodes of inflammation and pain approximately once a month. He was diagnosed with a torn meniscus. In January 1994, a VAMC record noted the Veteran to have right knee pain after a valgus injury in March 1993. He was noted to have frequent giving way and having tried a brace unsuccessfully. He was referred for an MRI. In January 2013, a VAMC record reported that the Veteran had right knee pain which had progressed over the prior 3 months. He stated there was no recent injury, no locking or giving way, but that his knee felt unsteady. He reported pain with prolonged walking, standing, and stairs. He noted occasional swelling and reported a past history of knee surgery in 1993. An April 2013 VAMC record reported that the Veteran presented for evaluation of his right knee. He had pain, catching, a swelling. He denied any history of injury, but reported a prior ACL reconstruction in 1993 and presented wearing a right knee hinged brace. A March 2014 VAMC record showed the Veteran to have presented with right knee pain, catching, and swelling. He denied any history of injury. He reported a prior ACL reconstruction in 1993. He was wearing a hinged knee brace. In April 2014, a VAMC record showed the Veteran to have had a right knee diagnostic arthroscopy and debridement of a medial meniscal tear. May 2016 private medical records showed the Veteran to have undergone an MRI of the right knee after complaints of right knee pain. The impression was a nondisplaced tear of the medial meniscal posterior horn. A subsequent May 2016 private medical report showed the Veteran to have undergone a diagnostic knee arthroscopy, medial meniscectomy, and a medial chondroplasty and synovectomy. In July 2016, the Veteran submitted a statement which indicated that he injured his right knee in-service when he jumped out of the back of a truck. He stated he reported his injury but was told to walk it off. He stated that by the time his training exercise was over his right knee seemed to be okay, but that it would occasionally bother him from time to time. In August 2016, a private medical record showed the Veteran to have right knee symptoms which improved after his surgery. He was diagnosed with primary osteoarthritis of the right knee. The medical record noted that the Veteran stated that he injured his right knee while on active duty in the military and that his 1993 surgery was secondary to his in-service injury. The examiner stated that it was reasonable to assume that some degeneration he has in his right knee was due to the injury the Veteran sustained while on active duty. But the examiner recommended that VA defer with its own records regarding the Veteran’s ACL reconstruction and if it may have related to the Veteran’s claimed in-service injury. In July 2017, the Veteran and a friend testified before the undersigned Veterans’ Law Judge. In regard to his right knee, the Veteran reported that he was involved in a training exercise when he jumped out of the back of a supply truck and felt popping his knee. He reported that he told his superior officer that he had hurt his knee, but that he was discourage from going on sick call. He stated that he just worked his way through it. He stated that after a period of time his knee was getting worse and worse and he finally went for VA care in 1993 and reported his knee was hurting and he was diagnosed with an ACL tear. The Veteran’s friend also testified at the July 2017 hearing. The friend stated that he knew the Veteran while the Veteran was on active duty and that the Veteran reported he could not play sports or do recreational activities because his knees hurt. Direct service connection necessitates that the Veteran’s right knee disorder was related to an injury or disease incurred in service. The evidence of record, however, does not support such a finding. The Board first notes that the Veteran’s STRs are void of any indication that he injured he right knee while in-service. There are no treatment records which indicate that the Veteran had right knee pain or any other associated right knee symptomology. The Veteran did not report any in-service injury or present for any in-service treatment. In his 1981 separation examination, the examiner did not find or report any right knee symptoms. Furthermore, there is no indication that the Veteran sought treatment for or reported any right knee symptomology within a year of his separation from service. Indeed, as established by the medical evidence of record, the Veteran’s first report of issues with his right knee occurred in May 1993, when he reported complaints of right knee pain after an injury which had occurred 2 months prior. Thus, the Veteran’s first documented complaints of right knee pain and other symptoms was 12 years after his active duty service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, the Board also notes that the Veteran did not report or associate that right knee pain with any event or injury in-service and, in fact, did not mention his active duty service in his 1993-1994 right knee treatment at all. The Veteran’s more recent VA medical care also did not show that the Veteran related his right knee pain to any injury that had occurred in service or to his active duty service in any capacity. January and April 2013 and March 2014 VAMC records show that the Veteran denied any history of injury when reporting his right knee pain and symptomology. Thus, it is not until his March 2016 private treatment that the Veteran mentioned his active duty service and his report of a right knee injury while in-service. Also, significantly, the private treating physician did not opine that the totality of the Veteran’s right knee symptoms were associated with his claimed in-service injury, but specifically stated that VA should defer to its own records when determining if the Veteran’s right knee ACL symptoms and surgeries were associated to his active service. As such, the Board notes that none of the Veteran’s medical providers treating his right knee stated that his right knee disorder or the residuals thereof were linked to his active duty service. Indeed, other than the March 2016 recounting of the Veteran’s contention of an in-service injury, the Veteran’s active duty service was not discussed in relation to his right knee. The medical evidence of record, then, did not link the Veteran’s right knee disorder to his active service. As such, service-connection for a right knee disorder is not warranted or supported by the record. The Board has considered the Veteran’s lay statements, including his July 2017 hearing testimony and that of his friend, that his right knee disorder was related to and caused by his active service. Although the Veteran and his friend are competent to describe observable symptoms of his knee condition, they are not competent to opine as to the etiology of the Veteran’s right knee disorder, as they have not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, their lay opinions that the Veteran’s right knee disability was caused by active service do not constitute competent medical evidence and lack probative value. Based on the foregoing, the Board finds that the evidence does not show that the Veteran’s right knee disorder manifested in service or within one year of discharge; nor does it show that he had continuous symptoms following service. Accordingly, service connection for the Veteran’s right knee disorder is not warranted. The Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a right knee disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran has sought service connection for bilateral hearing loss and tinnitus. In December 2010, a VAMC record determined that the Veteran had hearing loss and subjective tinnitus and issued the Veteran hearing aids. In April 2016, a VA examination determined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to his active duty service, including his conceded noise exposure in-service. In July 2016, the Veteran submitted a statement which reported that his tinnitus began when he was involved in a training exercise which required exploding torpedoes. The Veteran reported that he left the safety bunker while denotating the torpedoes and saw the air moving towards him and then knocking him to the ground. He reported that after he got up he had ringing in his ears. In his July 2017 hearing testimony, the Veteran stated that his military duties included looking for landmines, blowing up things, and blowing up obstacles. He reported using explosive devices. The Veteran reported that his tinnitus began when he was responsible for denotating explosives when he was hit by the shock wave of the explosion. He reported that it knocked him down and he notice ringing in his ears after that. He stated that at times he forgets about the ringing in his ears, but that if he thinks about it, it is present. He stated he was exposed to noise every day while in-service and used the provided hearing protection. He stated that post-service he was not exposed to noise to the extent he was while in-service. He stated that he had hearing loss as far back as he could remember from being in-service. He reported post-service noise exposure when he worked in a print shop, but that he was issued hearing protection. The witness at the hearing testified that he remembered after the Veteran left service that the Veteran would ask him to speak louder to him and that the Veteran was hard of hearing. The Veteran also testified that his tinnitus occurred every day and was getting worse. Upon review of the April 2016 VA examination, the Board notes that the Veteran’s statements regarding his noise exposure and the specific event which he reported caused his tinnitus were not recorded or considered. Furthermore, the VA examiner did not consider the Veteran’s December 2010 audiological examination and his statements regarding his hearing loss and tinnitus contained in that examination. Thus, the Board finds that the April 2016 VA examination is inadequate for adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2 (2016). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate audiological examination, by an examiner who has not previously examined him, to determine the nature and likely etiology of his bilateral hearing loss and tinnitus. The claims file and all pertinent records must be made available to the examiner for review. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss and/or tinnitus had onset during service or is otherwise related to his active military service. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure) including the Veteran’s service treatment records and lay assertions should be considered in giving this opinion. The examiner is specifically asked to address the Veteran’s in-service audiograms, his December 2010 VA medical center audiological evaluation, his July 2016 statement, and the July 2017 hearing testimony of the Veteran and his witness. The examiner is reminded that it is not a sufficient rationale for a negative nexus opinion merely to state that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the examiner determines that a requested opinion cannot be given without resort to speculation, the examiner must explain the reason for that conclusion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel