Citation Nr: 1808873 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 15-36 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right knee disability to include chondromalacia and torn meniscus with arthritis. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps from June 1960 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2017. A transcript of the hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND I. Bilateral Hearing Loss and Tinnitus The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he asserts is related to service. At a December 2017 Board hearing, the Veteran testified that he repeatedly fired large weapons in service without hearing protection, which caused his bilateral hearing loss and tinnitus. The Veteran testified that his military occupational specialty (MOS) was cook, and he worked in the mess hall during service. The Veteran also testified that he shot large caliber rifles without hearing protection in service because he and other service members were not allowed to use hearing protection. He testified that they would improvise to keep the sound of the big guns out of their ears by using cut up rifle patches as earplugs; however, the earplugs would be removed if they were caught with them, because they were not allowed to have hearing protection in the Marine Corps. The Veteran testified that he regularly fired his weapon in service because he was the designated shooter for his platoon, and he shot thousands of rounds over a period of two years. The Veteran testified that during service he was assigned temporary additional duties which included training officers from Quantico, Virginia how to shoot rifles, and he trained the 22nd range. He also taught cooks how to shoot. The Veteran testified that he was transferred to the mess hall as a cook following a knee injury in service, and that he had other occupations. As a member of H&S Company, the Veteran would be placed wherever they needed a Marine. The Veteran testified that he noticed that he was having trouble with his hearing in service, and started hearing a buzzing sound in service. The Veteran testified that he continues to have a buzzing in his ears, which has progressively gotten worse over the years. He testified that after service he worked for an employer that changed his job duties because the Veteran could not hear the sounds of the instruments as required. The Veteran served in the United States Marine Corps from June 1960 to June 1964, and received multiple awards and medals including the Rifle M1 Expert Badge and the .45 Pistol Marksman Badge. Military personnel records reflect that the Veteran engaged in various weapons firing trainings in August 1960, November 1961, September 1963, and November 1963. Military personnel records reflect that the Veteran's primary duty was cook striker or a cook from November 1960 to June 1964. Although the military personnel records reflect that the Veteran was assigned temporary additional duties at various times throughout service, the records do not indicate the nature of the Veteran's temporary additional duties. However, the Veteran is competent in this regard to describe the nature of such temporary duty. Post service private treatment records reflect a diagnosis of bilateral sensorineural hearing loss from November 2017. The treatment provider opined that it was due to loud noise exposure. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The requirement that the evidence "indicates" that the Veteran's disability "may" be associated with his service is a low threshold. Id. Thus, in light of the Veteran's contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran's bilateral hearing loss and tinnitus, to include whether the Veteran's bilateral hearing loss and tinnitus were related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. II. Right Knee Disability The Veteran seeks service connection for a right knee disability, which he asserts is related to service. At a December 2017 Board hearing, the Veteran testified that an injury he sustained during service to his knees, caused his right knee disability. The Veteran testified that he injured his knees during a night training class. While he was running, he was knocked down and he hit both knees on something hard and could not walk. He was picked up in a jeep and carried to the infirmary where they drained one knee, wrapped it up, and gave him medication to treat his pain. The Veteran testified that after the injury his right knee would swell and fill up with fluid, he would then ice it down. As a result, his occupation was changed, and he was transferred to the mess hall, where he could peel potatoes, wash pots and pans and ice his knees. The Veteran testified that he was not diagnosed with a sprain because that would have been a ticket to come home, and he did not want to be sent back home. He testified that his right knee disability was being treated by private doctors, and that they drained his knee several times. The Veteran served in the United States Marine Corps from June 1960 to June 1964. A June 1960 Report of Medical Examination, and a June 1960 Report of Medical History for enlistment revealed no abnormalities of the Veteran's knees. A February 1961 service treatment record reflects a diagnosis of torn medial meniscus. The treatment provider noted that the Veteran had injured his right knee playing football in November 1958, and the knee had been sore off and on since then. Approximately two weeks prior to February 1961, the Veteran had stepped in a hole and twisted his knee again, and since then his knee had been painful and swollen along the medial aspect. The treatment provider also noted that the Veteran was a cook who stood all day long. A February 1962 treatment record reflects that the Veteran had been having difficulty with his right knee. It would swell and give him discomfort over the medial aspect after standing for a long period or after running. Physical examination revealed some synovial thickening and some quadriceps atrophy. The Veteran was placed on light duty and was prescribed conservative therapy. A February 1962 x-ray of the right knee revealed a normal knee. March 1962 service treatment records reflect that the Veteran underwent physical therapy. The treatment provider noted that the Veteran's knee was improving and could lift 35 pounds with progressive resistant quadriceps exercises. The Veteran had some discomfort when he would bang his knee; otherwise, he was relatively asymptomatic. Physical examination revealed some atrophy of the quadriceps as before, no localizing tenderness except perhaps at the origin of the medial collateral ligament. The Veteran was no longer on light duty and was permitted to return to full duty. February 1964 service treatment records reflect that the Veteran injured his right knee during his physical fitness test. Physical examination revealed soreness where hamstrings joined the knee posteriorly, and no swelling or joint line tenderness. Post service private treatment records reflect a diagnosis of torn medial meniscus, torn lateral meniscus, and grade two chondromalacia of medial femoral condyle and patella of the right knee from December 2004. The Veteran underwent an arthroscopic partial medial and lateral meniscectomy and an arthroscopic chondroplasty of the medial femoral condyle and patella right knee. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims. 38 U.S.C. § 5103A(d); McLendon, supra. In light of the Veteran's contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran's right knee disability, to include whether the Veteran's right knee disability is related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether it is at least as likely as not (50 percent or greater likelihood) that bilateral hearing loss manifested during service, that sensorineural hearing loss was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to a period of active duty service. b. whether it is at least as likely as not (50 percent or greater likelihood) that tinnitus manifested during service, that tinnitus was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the following: i. the Veteran's testimony that he repeatedly fired large weapons without hearing protection in service; ii. the Veteran's testimony that he fired thousands of rounds over a period of two years in service without hearing protection; In rendering the opinion, the examiner should consider the Veteran's testimony to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's right knee disability. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether a right knee disability clearly and unmistakably (obvious, manifest, undebatable) existed prior to the Veteran's period of active service. In making this determination, the examiner is requested to consider the Veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the disability, and lay and medical evidence concerning the inception, development and manifestations of the disability. The examiner must outline the specific evidence in the record supporting this opinion. b. If the examiner determines that there is clear and unmistakable evidence that the Veteran's right knee disability preexisted service, is there clear and unmistakable evidence that the preexisting right knee disorder was NOT aggravated in service beyond the natural progression of such disorder. c. If there is no clear and unmistakable evidence that the Veteran had a right knee disorder that preexisted service and was not aggravated in service, then opine as to whether it is at least as likely as not (50 percent or greater likelihood) that a right knee disability manifested during service, that arthritis was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the February 1961, February 1962, March 1962 and February 1964 service treatment records, which reflect treatment of the Veteran's knees in service. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Readjudicate the issues on appeal in light of all of the evidence of record. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).