Citation Nr: 20003532 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-45 881 DATE: January 16, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for right knee disability is granted. Service connection for left knee disability is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss had its onset in service. 2. The Veteran’s tinnitus had its onset in service. 3. The Veteran’s right knee disability had its onset in service. 4. The Veteran’s left knee disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § § 1110, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. § § 1110, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for left knee disability have been met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1966 to October 1968, including service in Vietnam from April 1967 to April 1968, with decorations including the Combat Infantryman Badge and the Air Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in September 2019. Service Connection 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus The Veteran contends that his bilateral hearing loss and tinnitus are due to loud noise exposure in service and that the disabilities have been recurrent since service. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). When a disability is initially diagnosed after separation from service and not within any applicable presumptive period, service connection may be granted if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, like tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. § § 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In addditin, in cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the January 2016 Notice of Disagreement and September 2016 Form 9, the Veteran asserts that he did not have or wear hearing protection while in the military as an infantryman. The Veteran’s MOS was 11C20 indirect fire crewman, which is listed as being “highly probable” of hazardous noise exposure during in-service events, and he was exposed to very loud noises of gunfire and explosions and firing of the mortar. Id.; see also September 2016 Statement. Service noise exposure would have preceded any occupational and recreational noise exposure. The Veteran’s hearing has deteriorated over the years and he is now wearing hearing aids. At his September 2019 Board Hearing, the Veteran stated that he experienced ringing in his ears during combat service and the ringing has continued consistently since then. He noticed a decline in his ability to hear while serving in combat in Vietnam. The Veteran was afforded a VA examination in July 2010, where the examiner conceded acoustic trauma and military noise exposure but opined negatively that there was no medical link between hearing loss and military service, due to normal hearing showings during discharge examinations, and the lack of audiometric findings in STRs that met the disability thresholds. The Veteran was given another VA examination for hearing loss and tinnitus in October 2015, where the examiner provided a negative nexus opinion because of normal hearing in both ears shown on military entrance, and exit examinations, noise exposure from machinery/equipment from working in a factory for 30 years as a civilian, and no documentation in military service record of complaints regarding tinnitus, or a diagnosis of tinnitus. The Veteran also submitted a letter from his private doctors from October 2019 who provide a positive nexus opinion, by opining that both hearing loss and tinnitus originated during the Veteran’s time in service and have gotten progressively worse since to where it bothers his quality of life in terms of his sleep and audiograms show a mild sloping down to severe hearing loss bilaterally with gross asymmetry in the left side and a word recognition score of 70 on the left and 82 on the right. See November 2019 Medical Treatment Records. The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In this case, the Board finds the Veteran is competent to report regarding his noise exposure and the onset of his bilateral hearing loss and tinnitus, and the Board finds his testimony credible. See also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d 1372. The Veteran served in combat and was likely exposed to acoustic trauma while serving in Vietnam given that such exposure is consistent with the circumstances, conditions and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service injury. In addition, the medical evidence shows that the Veteran has been diagnosed as having tinnitus and bilateral hearing loss and he reports the onset of the conditions during combat service in Vietnam. Further, the Board finds that he is both competent to report observing ringing in the ears and decreased hearing acuity during and since serving in combat in Vietnam and that his account of having tinnitus and hearing loss since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his tinnitus and bilateral hearing loss became manifest during his combat service. See Reeves. As such, service connection for tinnitus and bilateral hearing loss is warranted. 3. Service connection for right knee disability 4. Service connection for left knee disability The Veteran contends that his right and left knee disabilities have their onset in service and are in the bad shape they are in because of his duties while in service. The Veteran states he made over 100 combat assaults in full heavy gear weighing 70 pounds or more jumping from a non-landing helicopter that over time has affected his knees. See NOD & Form 9. Veteran also asserts that after returning home from Vietnam, he began experiencing pain in his knees; the pains worsened and in 2000 he began seeing orthopedic surgeons. See September 2016 Statement. X-rays showed both knees arthritic and deteriorated down to the bone; the surgeon diagnosed the Veteran with advanced degenerative osteoarthritis, and he underwent bilateral total joint knee replacement in 2014. Id. At his Board hearing, the Veteran reiterated that his 100 jumps while in military service were the source of what led to his later diagnosed degenerative arthritis. See Hearing Transcript, pgs. 5-6. The Veteran was provided a VA examination for his knees in October 2015. The examiner provided a negative nexus opinion by concluding that it was less than likely as not that arthritis in the bilateral knees is the result of jumping out of helicopters, and referenced an x-ray report from 2000 that noted that, if degenerative arthritis was the result of jumping out of helicopters during military service, it would have developed sooner than 30 years after service. The Veteran provided a letter from a private doctor from December 2015, who states the Veteran has been a patient for many years, and that his arthritis is attributable to the injuries sustained during military service. See Third Party Correspondence. Additionally, the Veteran submitted another letter from his orthopedic surgeon from January 2016, who also supports Veteran’s contentions and opines that the helicopter jumps during service contributed to the eventual arthritis in both of the Veteran’s knees. The Board finds that the Veteran is competent to report regarding the symptoms he experienced during and since service and finds his testimony credible. See also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, despite a negative nexus opinion on record, and in light of the positive nexus opinions provided, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a right knee disability and left knee disability is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.