Citation Nr: 18151248 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 11-11 745A DATE: November 19, 2018 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. FINDINGS OF FACT 1. The Veteran currently suffers from right hear hearing loss for VA purposes, and resolving all reasonable doubt in his favor, such hearing loss had its onset during or is otherwise related to his active service. 2. Resolving all reasonable doubt in the Veteran’s favor, his current right knee disability is related to his claimed in-service injuries. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.385. 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1978 to July 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was previously before the Board in June 2017. At that time, the Board granted claims for service connection for left ear hearing loss and tinnitus, and it remanded the claims listed above, as well as a claim for service connection for a psychiatric disorder. In February 2018, the Appeals Management Center (AMC) granted the Veteran’s claim for service connection for a psychiatric disorder. As this represents a full grant of the benefit sought, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption for certain chronic diseases, to include degenerative arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations 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.” If there is not sufficient evidence that the currently diagnosed chronic disease was chronic in service or within a presumptive period, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is demonstrated. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a). 1. Entitlement to service connection for right ear hearing loss The Veteran seeks service connection for right ear hearing loss, a disability which he contends had its onset during or is otherwise related to his active service. For the reasons that follow, his claim shall be granted. First, the evidence indicates that the Veteran now suffers from right ear hearing loss for VA purposes. 38 C.F.R. § 3.385. The current disability criterion is met. The Veteran’s complete service treatment records are not available and have not been obtained. However, the Veteran has consistently stated that he was exposed to noise during his active service, a contention that the Board found credible in its earlier decision. The in-service incurrence criterion is met. The final question is whether the Veteran’s right ear hearing loss is related to his active service. The Board previously remanded this issue in an effort to resolve this question, but the examiner from a February 2018 VA examination determined that she could not resolve that question without resorting to mere speculation, as the Veteran’s service treatment records were not available. That said, in its earlier June 2017 decision, the Board found the Veteran’s statements regarding his in-service noise exposure and his suffering from symptoms of hearing loss since that time to be credible, and used such contentions to grant service connection for his left ear. A similar rationale should be applied to his right ear which, prior to the February 2018 VA examination, had not shown hearing loss for VA purposes. Considering the Veteran’s statements and the evidence of record, the Board resolves all reasonable doubt in his favor and concludes that his right ear hearing loss is similarly related to or had its onset during his active service. The claim is granted. 2. Entitlement to service connection for right knee condition. The Veteran is seeking service connection for a right knee condition. The Veteran’s current treatment records reflect a diagnosis of degenerative arthritis of the right knee, as such the first element of service connection, a current disability, is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Veteran’s service treatments records have been deemed unavailable. However, the Veteran has reported that he suffered a right knee injury in-service. The Veteran stated that he either fell or was pushed down the stairs, which resulted in knee pain, popping, and grinding. He also reported that he was given a Cortizone shot to help with the pain. The Veteran’s brother and mother also provided statements regarding in-service incidents regarding the Veteran’s right knee. The Veteran’s brother recalls that his mother called him to let him know that the Veteran was pushed down a flight of stairs. The Veteran’s brother also described a jeep accident, in which the Veteran was thrown from the jeep. The Veteran needed crutches on both occasions and was unable to drive because of issues with both of his knees. The Veteran’s mother reported the stairs incident, the jeep accident, and a third accident in a truck, in which the Veteran injured his knees and back. The question for the Board is whether the Veteran’s reported incidents are related to his current right knee disability. The Board previously remanded this claim in order to obtain an etiology opinion regarding the Veteran’s right knee disability. In an April 2018 opinion, a VA examiner offered a comprehensive opinion regarding why, even when conceding that the Veteran did suffer a right knee injury during is active service, the Veteran’s current knee disabilities were not related to that service. Though this opinion was comprehensive, the Board does not find it to be adequate. Notably, much of the examiner’s rationale was based on the Veteran’s lack of treatment until the mid-2000s. However, the Veteran had previously noted that he was treated at VA facilities in the 1990s. VA sought records of such treatment, but determined that they were not available. The examiner also noted that, in private treatment records, the Veteran contended that his knee pain has begun in the early 2000s. The examiner did not discuss VA treatment records, however, in which the Veteran contended that he had knee pain since his active service. Importantly, an August 2004 VA treatment record reflects the Veteran’s complaint of knee pain for 30 years. An August 2007 VA treatment record similarly reflected the Veteran’s contention that he injured his right knee in service. Both of these records were prior to the Veteran’s claim for service connection for his right knee disability, lending greater credence to their veracity. Thus, the April 2018 VA examination is based on an inaccurate factual premise and is therefore not adequate for rating purposes. In the end, the Board is left with the Veteran’s credible and competent assertion of a right knee injury in service with pain and symptoms continuing thereafter. His service treatment records are missing, as are post-service VA treatment records, both of which could have corroborated his contentions. Under these circumstances, the Board finds it most prudent to resolve all reasonable doubt in the Veteran’s favor and find that his current right knee disability is either related to or had its onset during his active service. Again, the Board acknowledges the earlier April 2018 opinion that found the opposite. In light, however, of the evidence of record, the Board simply cannot afford that opinion probative value. As such, the benefit of the doubt is resolved in the Veteran's favor, and entitlement to service connection for a right knee disability must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for left knee condition, to include as secondary to the Veteran's service-connected right knee condition is remanded. Unlike above, the evidence regarding this claim is underdeveloped, and a remand is required. The Veteran contends his claimed left knee condition was caused or aggravated by his service-connected right knee condition. The Veteran most recently underwent a VA examination in April 2018 to determine the etiology of his claimed left knee disability. However, the opinion regarding the Veteran’s left knee condition needs further medical guidance, because the VA examiner did not tailor the substance of that opinion to include a discussion of whether the Veteran’s left knee condition was either caused or aggravated by his service-connected right knee condition. As such, a supplemental addendum opinion—based on full review of the record and supported by stated rationale—is needed to fairly decide the issue on appeal. The matters are REMANDED for the following actions: 1. Obtain an opinion as to whether the Veteran’s current left knee disability is secondary to his right knee disability from any qualified examiner. Further in-person examination of the Veteran is left to the discretion of the examiner providing the addendum opinion. If the examiner deems such examination necessary to provide the information requested below, then such an examination should be scheduled. Following a review of the record, the examiner must address the following: (a) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran’s left knee disability began in service, was caused by service, or is otherwise related to the Veteran’s military service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability is proximately due to or the result of the Veteran’s now service-connected right knee condition? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability was chronically worsened (aggravated) by the Veteran’s service-connected right knee disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. The examiner should consider the lay testimony of record. A detailed rationale supporting the examiner’s opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel