Citation Nr: 18157618 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-57 446 DATE: December 13, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), agoraphobia, and panic disorder is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is etiologically related to acoustic trauma sustained in active service. 2. The Veteran does not have bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from March 2000 to March 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In his November 2016 substantive appeal, the Veteran requested a hearing before the Board; however, he cancelled his request in a January 2017 letter. Thus, the hearing request is considered withdrawn. Service Connection – Tinnitus The Veteran has asserted that he has tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that during active service he was exposed to hazardous noise in the form of engines from military motor vehicles, and there is no evidence that the Veteran utilized hearing protection. The Board finds that the Veteran’s report of noise exposure during service is consistent with the Veteran’s military occupational specialty (MOS) as a motor vehicle operator. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) do not show that the Veteran reported complaints of tinnitus during active service. However, the Veteran has reported that he first experienced ringing in his ears shortly following his separation from service, and that his symptoms have continued since that time. The Board notes that the Veteran is competent to report when he first had symptoms of tinnitus and that such symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In December 2014, the Veteran was afforded a VA audiological evaluation. At that time, the examiner diagnosed tinnitus. The VA examiner opined that the Veteran’s tinnitus was less likely as not caused by or a result of in-service noise exposure. In this regard, the examiner discussed the Veteran’s report that tinnitus began approximately 2 years following his separation from service, and that military audiological examinations from March 2000 and December 20003 showed no significant shift in hearing thresholds in high frequencies. The Board finds the December 2014 VA medical opinion inadequate for adjudication purposes. In this regard, the Board notes that the examiner failed to consider whether tinnitus could have had a delayed onset after significant in-service noise exposure. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify tinnitus, and his statements have been found credible. The Board concedes that the Veteran sustained acoustic trauma in active service. The VA medical opinion of record is not probative evidence against the claim. The Veteran has competently and credibly reported tinnitus began shortly following his separation from service, and he has also competently and credibly asserted a continuity of relevant symptomatology since that time. Further, the Veteran has a current diagnosis of tinnitus. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Hearing Loss The Veteran seeks entitlement to service connection for bilateral hearing disability that he asserts is etiologically related to in-service exposure to hazardous noise levels. As noted above, the Veteran has been granted entitlement to service connection for tinnitus as a result of acoustic trauma sustained in active service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. In December 2014, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported in-service noise exposure. However, the Veteran was not found to have bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. While the Veteran is competent to report observable symptoms of decreased hearing acuity, he is not competent to provide a diagnosis of bilateral hearing loss disability for VA purposes, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d 1372. Therefore, the Veteran is not competent to provide a diagnosis in this case. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there is no evidence of record showing that the Veteran has bilateral hearing loss disability for VA purposes. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (b) 2012); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection – Right and Left Knee Disabilities In December 2014, the Veteran was afforded a VA knee and lower leg conditions examination. The examiner found no evidence of any right or left knee disabilities and did not provide a medical opinion. However, the record reflects that the Veteran was later treated for and diagnosed with anterior cruciate ligament tear, Fat Pad syndrome, ganglion cyst, and patellofemoral syndrome during the pendency of the appeal. Therefore, the Board finds that a new VA examination is warranted to determine the nature and etiology of his right and left knee disabilities. Service Connection – Acquired Psychiatric Disability The Veteran asserts that he has an acquired psychiatric disability that is related to his active service. Specifically, the Veteran contends that during a training exercise he injured his foot, which caused a large portion of his skin to peel off, and that he was unable to receive aid until the following morning. Post-service treatment records show that the Veteran has been diagnosed with PTSD, panic disorder, and agoraphobia. To date, no VA medical opinion has been obtained with regard to the Veteran’s claimed acquired psychiatric disability. Therefore, the Board finds the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed acquired psychiatric disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present right and left knee disabilities, to include anterior cruciate ligament tear, Fat Pad syndrome, ganglion cyst, and patellofemoral syndrome. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether: a) It is at least as likely as not (50 percent or better probability) that any currently present right knee disability had its onset in service or is otherwise etiologically related to the Veteran’s active service. b) It is at least as likely as not (50 percent or better probability) that any currently present left knee disability had its onset in service or is otherwise etiologically related to the Veteran’s active service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination with an appropriate psychologist or psychiatrist to determine the nature and etiology of any current psychiatric disability, to include PTSD, panic disorder, and agoraphobia. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, or proximate thereto. Then, for each psychiatric disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel