Citation Nr: 20021253 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-13 993 DATE: March 25, 2020 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. Entitlement to a disability rating in excess of 10 percent for left knee, status post lateral meniscus debridement and synovectomy, is remanded. Service connection for a back disability is remanded. FINDING OF FACT Currently diagnosed tinnitus is shown to be related to military service. CONCLUSION OF LAW 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, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 2004 to August 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue of service connection for sinusitis has been appealed by the Veteran, but the issue is not yet in active status at the Board and the Board declines to take jurisdiction over the issue. Review of the record shows that the Veteran is currently employed. There is no allegation that the Veteran’s service-connected bilateral knee disabilities preclude him from securing or following a substantially gainful occupation requiring consideration of a total disability rating based on individual unemployability. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). Service connection for tinnitus The Veteran reports tinnitus, which establishes the existence of a present disability. Tinnitus is of a nature which is uniquely suited to diagnosis by laypersons, as there is no true objective testing applicable. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Some chronic diseases, including tinnitus (as an organic disease of the nervous system) may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). During his September 2017 VA audiological examination, the Veteran stated that his tinnitus began during service and has continued ever since. The examiner provided a negative opinion, noting that the Veteran had normal hearing during service, but the examiner did not appear to consider the Veteran’s statements regarding chronic tinnitus since service. Further, while the service treatment records do not reflect any complaint of tinnitus, the in-service audiograms indicate that the Veteran was exposed to noise and the Veteran’s DD Form 214 shows that he served as a vertical launching system maintenance technician and small arms marksmanship instructor. The Board finds the Veteran competent and credible concerning the chronicity of his tinnitus since service. 38 C.F.R. § 3.303(b). Resolving the benefit of the doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Left and Right Knees A June 2018 VA Compensation and Pension (C&P) Exam Inquiry shows that a June 2018 VA examination for the knees was canceled because the Veteran reportedly refused the examination. The August 2018 supplemental statement of the case then denied higher ratings for the Veteran’s service-connected bilateral knee disabilities. Under 38 C.F.R. § 3.655(a), “individuals for whom an examination has been scheduled are required to report for the examination.” Turk v. Peake, 21 Vet. App. 565, 569 (2008). The provision provides, in pertinent part, that when a claimant, without good cause, fails to report for an examination, or reexamination, the increased rating claim will be denied. 38 C.F.R. § 3.655(b). In September 2018, the Veteran disputed the C&P Exam Inquiry, stating that he did not refuse the examination. He reported that he had contacted the VAMC to inform them that he had a work conflict with the examination date and wanted to reschedule the examination. The Veteran stated that he would have gladly attended the examination if it had been rescheduled. Given the circumstances and the Veteran’s reports that he wanted to reschedule the examination and will attend an examination, the Board finds that the Veteran should be scheduled for a new VA examination for his service-connected knee disabilities. Back The Veteran has not been provided a VA examination for his back disability. While the service treatment records are absent for any indication of a back complaint or problem, the Veteran reports that his back pain has been chronic and is related to service to include injuries, wearing heavy body armor, and carrying heavy ammunition cans and rounds. An August 2018 VA treatment record shows an MRI result of lumbosacral spine revealing chronic mild to moderate T11 compression deformity, likely sequala of remote trauma. The Veteran reported to the physician that he fell once in the Navy and injured his back. The Board finds that a VA examination is required to determine the nature and etiology of his back disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA examination to evaluate the level and severity of his service-connected bilateral knee disabilities. 3. Schedule the Veteran for a VA back examination. The claims file must be reviewed in conjunction with the examination. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s back disability is caused or aggravated by military service. A full and complete rationale must be provided for any opinion reached. 3. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, Counsel 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.