Citation Nr: 18156717 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-63 246 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for right knee chondromalacia and medial meniscus tear, post-operative is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss is related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to February 1979. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss. He contends that such disability is due to military noise exposure. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. In claims for VA benefits, VA must consider all information and lay and medical evidence of record. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary must give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In this case, the evidence of record, particularly the June 2015 VA examination report, reflects a current bilateral hearing loss disability, consistent with 38 C.F.R. § 3.385. Thus, the first element of service connection has been met. The evidence of record also supports a finding that there was in-service noise exposure. As a preliminary matter, service treatment records (STRs) do not include any hearing loss complaints or treatment. STRs include an undated periodic examination showing that the Veteran exhibited normal pure tone thresholds. At the Veteran’s February 1979 separation examination, the Veteran had an audiogram which showed normal hearing. On an accompanying Report of Medical History, the Veteran denied having hearing loss. The Veteran’s DD Form 214 indicates his military occupation specialty code (MOS) was telecom central. At the June 2015 VA examination, the Veteran reported that was exposed to loud noise on the firing range with no EPD’s. The Board finds the Veteran’s statements credible. Therefore, in-service noise exposure is established. With respect to third and final requirement, a nexus, the June 2015 VA examiner opined that based on the available in-service audiograms, the Veteran’s bilateral hearing loss is less likely than not caused by or a result of in-service noise events. The examiner’s rationale was that the Veteran’s MOS was telecom central and VA internal guidance materials indicate a moderate probability for noise exposure with that MOS. The examiner noted that the Veteran stated that he was exposed to loud noise on the firing range with no EPD’s. The Veteran denied ear pathology, familial hearing loss, and recreational noise. The examiner further noted that the Veteran had normal pure tone thresholds at a periodic audiogram in-service, and the Veteran’ had normal pure tone thresholds at separation from service. Although a VA examiner rendered the opinion that the Veteran’s current bilateral hearing loss was not related to his in-service noise exposure, such an opinion is of no probative value, as it was based on the absence of in-service evidence of bilateral hearing disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Additionally, the opinion does not consider the Veteran’s competent and credible statement of noise exposure in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). There is no other probative evidence of record which attributes the Veteran’s current bilateral hearing loss to any other cause than in-service noise exposure. The Veteran indicated in his lay statements that he experienced hearing loss in and since service. The Board finds the Veteran’s statements in this regard to be competent and credible. Moreover, VA laws and regulations require an adjudicator to review the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). After so doing, and with reasonable doubt resolved in the Veteran’s favor, the Board finds that the Veteran’s competent and credible lay statements regarding the in-service noise exposure and hearing loss in and since service, and the clinical evidence showing a current diagnoses of bilateral hearing loss, provide a sufficient basis to grant service connection for bilateral hearing loss. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Left Knee, Right Knee The Veteran contends that his left and right knee disabilities had their onset in service. An October 1980 private treatment record indicates that the Veteran was being followed for a sprain of the medial collateral ligament of the right knee. In a January 2016 statement, the Veteran reported that he was treated by a private physician for knee injury within one year of discharge, however, those records are no longer available. In a December 2016 lay statement, T.S. reported that he served with the Veteran in Germany from 1976 to 1978 as part of B Co. 97th Signal Battalion. T.S. stated that they played on the company sponsored football team during the fall of 1977. He stated that during one of the games in mid to late October, the Veteran received a knee and leg injury, and had to be taken to the base clinic at Mannheim. T.S. indicated that he did not recall the extent of that injury, but did recall that the Veteran was hurt pretty badly and was off work a few days, and was on crutches when he returned to work. T.S. reported that the Veteran had a medical profile exempting him from PT, motor pool responsibilities for the squad while he was recovering. T.S. stated that he recalled this, because he had taken over the responsibilities for the squad while the Veteran was recovering. T.S. noted the he remembered that the Veteran complained of knee pain and discomfort as a result from that injury, and was always careful concerning his injury. The evidence of record indicates that the Veteran has been diagnosed as having left knee arthritis, and right knee chondromalacia and medial meniscus tear, post-operative. The evidence also reflects knee symptoms in and since service. The Veteran has not been afforded a VA examination in conjunction with left and right knee claims. As the evidence indicates that the Veteran has current disability that may be associated with service, a VA examination should be conducted and opinion obtained as to the etiology of the Veteran’s left and right knee disabilities. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral knee disabilities. The claims file, including a copy of this remand, should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a current disability of either knee had it onset during service or is otherwise related to military service, to include the injuries described in the lay statements. The examiner must provide a comprehensive rationale for all opinions provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel