Citation Nr: 1808749 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-05 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for left knee condition. 4. Entitlement to service connection for right knee condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO in Muskogee, Oklahoma certified the appeal to the Board. The Veteran's claims file remains in the jurisdiction of the Muskogee RO. In March 2013, the Veteran submitted additional evidence following the December 2012 statement of the case. The Board acknowledges that the Veteran filed a substantive appeal (VA Form 9) on February 7, 2013, and that § 501, Public Law No. 112-154, 126 Stat. 1165 amended 38 U.S.C. § 7105 by adding new paragraph (e). Under that provision, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Currently, neither the Veteran nor his representative has requested RO consideration of such evidence in writing. As such, the evidence is subject to initial review by the Board. The issue of entitlement to service connection for left knee condition and entitlement to service connection for right knee condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VETERAN'S CONTENTIONS The Veteran contends that his current bilateral hearing loss and tinnitus were caused by or are related to his military service. The Veteran reports that his military duties included working as a power pack specialist and power generator equipment mechanic. The Veteran details excessive noise exposure while working without ear protection and in close proximity to gas turbines, diesel engines, generators, and jet engines. FACTUAL FINDINGS 1. A February 2013 private audiological examination report prepared by A.A.C., M.S. CCC-A, documented a current diagnosis of bilateral hearing loss for VA disability purposes. 2. A February 2013 private treatment record prepared by Dr. S.R.D. documented a diagnosis of subjective tinnitus. 3. As part of the Veteran's military occupational specialty of power pack specialist and power generator equipment mechanic, the Veteran was exposed to excessive noise in service, to include noises from gas turbines, diesel engines, generators, and jet engines. 4. A July 2010 VA examiner documented the Veteran's reports that, while in service, he had difficulty recognizing speech when background noise was present. 5. A January 1973 service treatment record documented pure tone air conduction thresholds of 10, 10, 10, and 5 decibels in the right ear at 500, 1000, 2000, and 4000 Hertz and 15, 15, 10, and 10 decibels in the left ear at 500, 1000, 2000, and 4000 Hertz. The audiogram did not document thresholds at 3000 Hertz. 6. An April 1973 service treatment record documented pure tone air conduction thresholds of 5, 10, 5, 5, and 10 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz and 5, 0, 0, 15, and 5 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. 7. A September 1976 service treatment record documented pure tone air conduction thresholds of 25, 20, 20, 15, and 20 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz and 25, 15, 15, 10, and 30 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. 8. An August 1977 service treatment record documented pure tone air conduction thresholds of 30, 15, 5, 0, and 0 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz and 15, 10, 0, 5, and 0 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. 9. The July 2010 VA examiner reviewed the Veteran's service treatment records and found that "[h]earing data at separation...suggest a possible temporary threshold shift." 10. As the Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, the July 2010 VA examiner verified an in-service threshold shift, and benefit of any doubt is resolved in favor of the Veteran, it was more likely than not the current bilateral hearing loss is a result of service or etiologically related to in-service acoustic trauma. 11. The July 2010 VA examination report documented the Veteran's reports that the onset of his tinnitus symptoms began in service. 12. The Veteran is competent to detail his symptoms of tinnitus due to the disability's unique and readily identifiable features. 13. The Veteran credibly reported his symptoms of tinnitus to begin within a year of separation of service. 14. The Veteran currently has tinnitus to an extent recognized as a disability for VA purposes, and evidence indicates that it was more likely than not the Veteran's tinnitus manifested to a compensable degree within one year of separation from service. LEGAL CONCLUSIONS 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's service connection claim for bilateral knee conditions. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. A medical examination or medical opinion is necessary in a claim for service connection if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). In April 2010, the Veteran filed a claim of entitlement to service connection for left knee pain and entitlement to service connection for right knee pain. Following review of the Veteran's claims file, the Board finds that VA examinations are warranted for each of the service connection claims. In regards to the knee conditions, April 2009 VA treatment records documented complaints of chronic knee pain. Therefore, the first element of McLendon is met. The second and third elements of McLendon are met as well. In an October 2012 correspondence, the Veteran detailed an in-service incident involving him falling off a moving vehicle. There, the Veteran stated that he was "pushed" and "fell out of the truck." When he fell, his right knee hit his nose and he fell forward. The Veteran acknowledged that he did not report to sick call after the incident. He explained, "I was young and scared of what might have happened to me if I did." Since the incident, the Veterans reported that he has had stiffness in his joints and persistent knee pain. In light of the foregoing, the Board finds that the low threshold of the McLendon standard has been met in this instance and that the Veteran should be afforded VA examinations to determine whether a causal relationship exists between service and any of his current conditions. McLendon, 20 Vet. App. at 81. Updated VA treatment records should also be requested. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and authorize VA to obtain any outstanding private treatment records. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified and associate them with the claims file. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. Update the file with any VA treatment records relevant to the Veteran's claims file since April 2010. If any requested records are unavailable, the Veteran should be notified of such. 3. After the above has been completed to the extent possible, schedule the Veteran for a VA examination to determine the etiology of any diagnosed left knee condition and right knee condition. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify each current condition (e.g. left knee condition, and right knee condition) by medical diagnosis. (b) For each diagnosed disability, indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in service or is otherwise related to service. Please explain why. (c) If the Veteran is diagnosed with arthritis, please indicate whether it is at least as likely as not (50 percent probability or more) that the arthritis disability was present within one year after separation of service. (d) If the Veteran is diagnosed with arthritis, please indicate the level of severity of the disability at the time of its onset. In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claims for service connection. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing (here, April 2010) meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. A complete rationale for the opinion rendered must be provided. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. 4. After the above development has been completed, readjudicate the claims for entitlement for service connection for left knee condition and entitlement for service connection for right knee condition. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs