Citation Nr: 20006239 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 15-14 899 DATE: January 28, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for left knee extension is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his bilateral hearing loss is etiologically related to his in-service noise exposure. 2. Resolving all reasonable doubt in favor of the Veteran, his tinnitus is etiologically related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 through August 1972, and from August 1972 through August 1976. These matters come 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 Muskogee, Oklahoma. Service Connection 1. Entitlement to service connection for bilateral hearing loss is granted. Service connection will generally be awarded when a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. See Fountain v. McDonald, 27 Vet. App. 258 (2016). For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. The Veteran asserts that he has current bilateral hearing loss and that it is the direct result of noise exposure during active service. VA examination reports dated in August 2014 reflect audiometric findings establishing a current hearing loss disability. See August 2014 C&P Exam. Specifically, the Veteran had bilateral puretone threshold above 40 decibels at 2000 Hz. Therefore, the Veteran was diagnosed to have hearing loss disability, and the first element of service connection has been met. See 38 C.F.R. § 3.303, 3.385. The Veteran served as an administrative specialist in the Air Force. Specifically, he worked as Photo Systems Specialist, where his job required installing and removing photographic film cannisters before and after every flight of the RF4C fighter aircraft assigned to his squadron. He states that he was exposed to almost continuous jet engine noise during his duty shifts. See September 2014 Correspondence. The Veteran states that he was also exposed to the aircraft engine start-up power unit, which was a turbine unit that generated a large amount of noise. In-service noise exposure is established based on the Veteran’s credible statements and the circumstances of his service. 38 C.F.R. § 3.303(a) (the places, types, and circumstances of service must be considered in determining entitlement to service connection). Nevertheless, the August 2014 VA examiner opined that the Veteran’s bilateral hearing loss was not related to in-service noise exposure, citing records showing hearing within normal limits at enlistment and separation of service. See August 2014 C&P Exam. The examiner also cited The Institute of Medicine’s 2006 report which states that hearing loss from noise injuries occur immediately following exposure, and that there is no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. See id. Thus, the examiner concluded that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The August 2014 VA examiner opined that while the Veteran did have a current hearing loss disability, it was not diagnosed until well after the Veteran separated from service, and therefore there was no nexus between the disability and the Veteran’s military service. The Board acknowledges the negative opinion of the August 2014 VA examination report. However, the Board declines to accept this opinion, as it did not adequately address the Veteran’s lay assertions of traumatic noise exposure from the jet engines during the Veteran’s service, which the Board has found to be competent and credible. Rather, the Board looks to the Veteran’s private audiological evaluation, performed in March 2015, where the examiner concluded that it is as likely as not that the Veteran’s hearing loss and tinnitus is secondary to hazardous noise exposure while in service. Additionally, the Board rejects the August 2014 VA examination’s assertion that the Veteran’s claim lacks a legal nexus based on the absence of a hearing loss disability at enlistment and separation of service. In Hensley, the court held that when audiometric test results do not meet the regularity requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection). Accordingly, the August 2014 VA medical opinion forms an inadequate foundation upon which to base a denial of entitlement to service connection for bilateral hearing loss. Additionally, the Veteran provided competent lay evidence stating that during service, he informed his supervisor of his hearing discomfort, and his supervisor responded that he would get used to it. See September 2014 Correspondence. The Veteran also noted that his supervisors rarely required him to wear hearing protection, and that he did not report this to physicians in fear that he or his supervisors would get charged with an Article 15, UCMJ. See id. Based on the Veteran’s March 2015 private audiological evaluation and the Veteran’s own competent and credible lay evidence, the Board concludes that the Veteran’s hearing loss is indeed connected to his military service. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for tinnitus is granted. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). As discussed above, the Veteran stated that his service as a Photo Systems Specialist in the Air Force left him exposed to continuous jet engine noise during his duty shifts. An August 2014 VA Exam provided a diagnosis for tinnitus in the Veteran but concluded that it is less likely than not that the tinnitus is caused by or the result of military noise exposure. The examiner noted that there was no evidence in the Veteran’s record or during his military service that show hearing loss or significant threshold changes which occurred during military service. See August 2014 C&P Exam. However, a March 2015 private audiological evaluation concluded that it is as likely as not that the Veteran’s tinnitus is secondary to hazardous noise exposure while in service. Based on the March 2015 private audiological evaluation, as well as the Veteran’s own competent lay evidence stating that he was continuously exposed to loud jet engine noise during service, the Board concludes that the Veteran’s tinnitus is indeed connected to his military service. The Veteran is competent to report experiencing tinnitus since his active service, as symptoms such as buzzing and ringing in the ears are capable of lay observation. Additionally, the Veteran is credible in his report of suffering tinnitus symptomatology during and since service. This credible report of a continuity of symptomatology suggests a link between his current tinnitus and service. Accordingly, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. 2. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. 3. Entitlement to a disability rating in excess of 10 percent for left knee extension is remanded. The Veteran asserts that his service-connected patellofemoral syndrome of the left knee, patellofemoral syndrome of the right knee, and left knee extension, are each entitled to a disability rating in excess of 10 percent. The Board sincerely regrets the delay, but the claims must be remanded for a new examination that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In particular, the January 2018 VA examination failed to comply with the requirements of Sharp. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. In this case, the January 2018 VA examination does not provide the necessary information regarding flare-ups, as specified above. The Veteran reported flare ups in both knees, but the examiner stated that the exam was not being conducted during a flare up in either knee. See January 2018 VA examination. The examiner concluded that she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination limit functional ability with flare ups, explaining that “there is no conceptual or empirical basis for making such a determination without directly observing function under the flare up condition.” See id. The examiner's reason for not providing an estimate of additional functional loss during flare-ups is too general in nature to comply with Sharp. In this regard, although the examination was not performed during a flare up, it is not apparent why the examiner could not estimate additional functional loss based on the Veteran's statements describing the flare ups, or why the available information in the file was not sufficient to permit such an estimate. Thus, the January 2018 VA examination is inadequate, and remand is warranted to seek a new medical opinion that adequately addresses the Veteran’s report of flare ups of his three leg disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records, dated from December 2017 forward. 2. Next, arrange for a VA examination to determine the severity of the Veteran's service-connected patellofemoral syndrome of the left knee, patellofemoral syndrome of the right knee, and left knee extension. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. In the examination report, the examiner must include all of the following: Flare-ups (Sharp): The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. (Continued on the next page)   3. Then, review the examination report and ensure that it complies with the above instructions, which are mandated by the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). 4. Finally, after completing any other development that may be indicated, readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.