Citation Nr: 20004883 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-03 252 DATE: January 23, 2020 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for a right knee disorder, to include as secondary to patellofemoral syndrome of the left knee is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, his currently diagnosed tinnitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran submitted additional evidence for consideration in his appeal. 38 U.S.C. § 7105(e)(1). 1. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As relevant to the instant matter, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his tinnitus is related to noise exposure during his military service. Specifically, he reports that he was exposed to excessive noise while participating in live fire exercises and performing his duties an armored vehicle mechanic with insufficient or no hearing protection. The Veteran further states that he experienced ringing in his ears during service. Therefore, he claims that service connection for such disorder is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus. In this regard, such is a disorder that can be identified through lay observations alone and the Veteran has offered competent and credible descriptions of experiencing tinnitus throughout the pendency of his claim. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, such diagnosis was confirmed at the May 2015 VA examination. Additionally, while the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis referable to tinnitus, such document his exposure to hazardous noise based on his work location, and his DD 214 reflects that his military occupational specialty was a light armored vehicle mechanic. Therefore, the Board finds his reports of in-service noise exposure to be competent and credible. Consequently, the remaining inquiry is whether the Veteran’s tinnitus is related to his military service, to include his noise exposure therein. In this regard, a May 2015 VA examiner reviewed the record, interviewed the Veteran, and conducted audiometric testing, and opined that it was less likely than not that his tinnitus is related to his in-service noise exposure. In this regard, he acknowledged that the Veteran was exposed to hazardous noise levels in service; however he found that electronic hearing testing conducted at enlistment, during service, and at discharge did not demonstrate a significant threshold shift beyond normal variability during service and, thus, he did not have an in-service hearing or noise injury. Therefore, the examiner found that, in the absence of an objectively verifiable noise injury, the association between the Veteran’s claimed tinnitus and noise exposure cannot be assumed to exist. Thus, he opined that the Veteran’s reported tinnitus is less likely as not caused by or a result of his in-service noise exposure. In contrast, the Veteran has offered competent and credible testimony that his tinnitus had its onset during service. Specifically, at May 2015 VA examination, he reported that his tinnitus may have begun in service. Additionally, at his November 2019 hearing, he reported that the ringing in his ears started in service and has been constant since such time. In further support of his claim, the Veteran submitted statements from fellow service members, C.M. and W.R., in November 2019, in which they both indicate that they recall the Veteran complaining of ringing in his ears during service. Consequently, the Board finds that, as his reports regarding the onset and continuity of such disorder are consistent with the evidence of record, such are competent and credible. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Charles, supra. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his currently diagnosed tinnitus had its onset in service. Consequently, service connection for such disorder is warranted. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss related to his aforementioned noise exposure during military service. He further states that he experienced a decrease in his hearing acuity during service. Therefore, he claims that service connection for such disorder is warranted. As an initial matter, the record reflects a current diagnosis of bilateral hearing loss as defined by VA regulations as demonstrated at a May 2015 VA examination and January 2017 private audiogram. 38 C.F.R. § 3.385. Additionally, as explained previously, the Veteran’s in-service noise exposure is acknowledged. Furthermore, at the time of his June 1999 separation examination, the Veteran reported hearing loss and indicated that he could not hear well at times. Consequently, the remaining inquiry is whether the Veteran’s bilateral hearing loss is related to his military service, to include his noise exposure therein. In this regard, a May 2015 VA examiner reviewed the record, interviewed the Veteran, and conducted audiometric testing, and opined that it was less likely than not that the Veteran’s bilateral hearing loss is related to his in-service noise exposure. In this regard, he acknowledged that the Veteran was exposed to hazardous noise levels in service as well as his subjective report of hearing loss while in service; however he found that electronic hearing testing conducted at enlistment, during service, and at discharge did not demonstrate a significant threshold shift beyond normal variability during service and, thus, he did not have an in-service hearing or noise injury. The examiner further noted that the Institute of Medicine (2006) indicated in a landmark study of noise injury while in military service that delayed onset hearing loss due to previous noise exposure is unlikely to occur. Consequently, if the evidence shows there has been no significant threshold shift beyond normal variability while in service (i.e., no hearing injury while in service), any hearing loss occurring following service is less likely as not caused by or a result of noise exposure while in service. Therefore, the examiner concluded that, based on in-service electronic hearing testing, the Veteran did not have hearing loss/hearing injury in service, and delayed onset hearing loss due to noise exposure is unlikely to occur. Thus, he opined that the Veteran’s hearing loss is less likely as not caused by or a result of his in-service noise exposure. However, since such time, the Veteran submitted the aforementioned statement from his fellow service member, C.M., in November 2019, in which he indicated that he recalled the Veteran having difficulty hearing general conversations and continually asked what was being said. Additionally, the January 2017 audiogram reflects a notation that the configuration of the Veteran’s hearing loss is consistent with concussive noise and loud noise exposure. Furthermore, with regard to the examiner’s reliance on the IOM (2006) report, the Court has found that, while the report states that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. The Court provided that, while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Consequently, the Board finds that at a remand is necessary in order to obtain an addendum opinion as to whether the Veteran’s bilateral hearing loss is related to his military service, to include his in-service noise exposure, in light of C.M.’s statement, the Veteran’s reports of in-service hearing loss and a continuity of symptomatology thereafter, the January 2017 audiogram, and the examiner’s reconsideration of the IOM opinion. 3. Entitlement to service connection for a right knee disorder, to include as secondary to patellofemoral syndrome of the left knee. The Veteran contends that he has a right knee disorder directly related to his military service. In this regard, he testified that he believed that such disorder was a result of the repetitive impact on his knees due to physical training and the nature of his duties as a mechanic that required squatting, lifting, jumping, and kneeling. Alternatively, the Veteran alleges that his right knee disorder was caused or aggravated by his service-connected left knee disability. In this regard, he testified that he placed more weight on his right knee to compensate for the pain, instability, and limited range of motion resulting from his left knee disability and ultimately altered his gait. In this regard, the Veteran’s service treatment records reflect that, at the time of his June 1999 separation examination, he reported patellofemoral syndrome in his right knee, which the examiner acknowledged, and indicated that he was currently experiencing pain in the right knee. However, upon examination in June 2015, no findings referable to the right knee were rendered. Nonetheless, in light of the Veteran’s reports of ongoing right knee symptomatology, the Board finds that a remand is necessary in order to afford him a new VA examination so as to determine the nature and etiology of his claimed right knee disorder. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who conducted the May 2015 audiological examination. The record, to include a copy of this Remand, should be forwarded for review by the examiner. If the May 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s diagnosed bilateral hearing loss is related to his acknowledged in-service noise exposure? In offering such opinion, the examiner should consider the fact that the IOM (2006) report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure,” which may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss. (IOM report at 203-04.) He or she should also consider the Veteran’s and C.M.’s reports that he experienced decreased hearing acuity in service that have continued to the present time as well as the January 2017 audiogram that reflects a notation that the configuration of the Veteran’s hearing loss is consistent with concussive noise and loud noise exposure. (B) State whether the Veteran’s bilateral hearing loss manifested within one year of his separation from service in August 1999 i.e., by August 2000. If so, please describe the manifestations. A rationale for any opinion offered should be provided. 2. Afford the Veteran as appropriate VA examination so as to determine the nature and etiology of his claimed right knee disorder. The record, to include a copy of this Remand, should be forwarded for review by the examiner and all indicated tests should be accomplished. Then, the examiner should address the following inquiries: (A) Identify all currently diagnosed right knee disorders that have been present at any time since January 2015, even if such is asymptomatic or resolved. If no right knee disorder is diagnosed, the examiner should offer an opinion as to whether the Veteran’s reported right knee symptomatology results in functional impairment of earning capacity. If so, the examiner is advised that the Veteran has a right knee disability for VA purposes. (B) If a right knee disability is found to be present, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, his military service, to include as a result of the repetitive impact on his knees due to physical training and/or the nature of his duties as a mechanic that required squatting, lifting, jumping, and kneeling, or due to his complaints of pain and reported patellofemoral syndrome as reflected at his June 1999 separation examination. (C) If a right knee disability is found to be present, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is caused or aggravated by the Veteran's service-connected left knee disability, to include as a result of overcompensation and/or an altered gait. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allison Payne 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.