Citation Nr: 21000461 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-13 150 DATE: January 5, 2021 ORDER New and material evidence having been received, the claim of service connection for left knee disorder, is reopened, the appeal is allowed. New and material evidence having been received, the claim of service connection for right knee disorder, is reopened, the appeal is allowed. New and material evidence having been received, the claim of service connection for tinnitus disorder, is reopened, the appeal is allowed. Service connection for left knee disorder is granted. Service connection for tinnitus is denied REMANDED Service connection for right knee disorder is remanded. FINDINGS OF FACT 1. New and material evidence was received by VA concerning the Veteran's previously denied claim of entitlement to service connection for tinnitus and bilateral knee conditions. 2. The Veteran’s left knee condition had its onset in service. 3. The Veteran's tinnitus was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claim for tinnitus, left knee and right knee, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for left knee disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1974 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in February 2019 and remanded for additional development. The Veteran previously submitted a claim of entitlement to service connection for right knee disorder that was previously denied in a September 2013 rating decision. Since that time, in connection with his claim, the Veteran submitted VA treatment records, lay statements and sworn testimony regarding his claimed conditions. These documents and statements were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand. Thus, the Board finds that new and material evidence has been received to reopen his previously denied claim for tinnitus and left and right knee disorder. See 38 C.F.R. § 3.156. In addition, the Board notes that the RO issued a supplemental statement of the case (SSOC) on September 2020 for the denials of the Veteran’s bilateral knee conditions. However, the Veteran’s VA examination for his bilateral knee conditions was performed after the issuance of the SSOC on October 2020. Thus, the Board finds that after the RO completes and adjudicates the orders of this decision, including the remand instructions, a rating decision or SSOC is warranted for his right knee condition. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Left knee The Veteran seeks service connection for his left knee condition. In support, the Veteran’s service treatment records (STR) shows that he suffered from a left knee injury, swelling and pain in service. See STR (July 1974). Additionally, the Veteran reported at his BVA hearing of his left knee injury in service and having recurring left knee problems ever since. See BVA hearing transcript (March 2018). The Veteran has a diagnosis of left knee strain and degenerative joint disease. See VA medical examination (October 2020) and see also VA medical treatment record (January 2012). Thus, the first element of service connection is met. Throughout the appeal, the Veteran has stated that his left knee condition has been recurrent since service. The Board acknowledges that on a September 2020 supplemental statement of the case the RO stated that the Veteran’s left knee disability was less likely related to service. However, the Board finds that the medical and lay evidence linking the Veteran's left knee disability to service is probative, competent and credible. In-service and post-service records show that the Veteran has various outpatient treatment records of his left knee disability. Indeed, the Veteran’s STR shows that he suffered a left knee injury in service and treatment thereafter. See STR (July 1974) and see also VA medical treatment record (January 2010 and 2012). The Board finds that the competent and credible evidence, that shows that the Veteran’s left knee problems have been recurrent since service. Indeed, his medical treatment records show that the Veteran has been suffering and continues to receive treatment for his left knee condition for several years. Id. The Board finds the Veteran’s sworn testimony and medical records, credible in showing that his left knee condition is related to service. The Veteran is competent to report his left knee symptoms that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. Thus, service connection is warranted for his left knee condition. In light of the competent lay and medical evidence linking the Veteran’s left knee disability to service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left knee disability had its onset during his period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303(a). 2. Tinnitus The Veteran reports that he is entitled to service connection for tinnitus. In support, the Veteran reports that his condition occurred due to weapons training in service. See BVA hearing transcript (March 2018). Additionally, the Board notes that the VA conceded noise exposure in service. In February 2019 the Board remanded this issue with instructions for the examiner to assess the onset and etiology of his tinnitus. In June 2020, the Veteran was provided a VA examination and the examiner opined that the Veteran’s tinnitus is less likely related to service. The rationale was that the Veteran's description of symptoms does not meet the Dauman and Tyler (1992) definition of tinnitus cited in the Tinnitus Handbook (Tyler). Additionally, the Veteran reports transient ear noise that occurs in the general population without auditory damage or pathology. This transient ear noise is not consistent with noise-induced tinnitus and is less likely than not related to military noise exposure. Etiology of tinnitus is not warranted when symptoms and clinical examination findings do not indicate a diagnosis of recurrent tinnitus. Further, the Veteran stated and confirmed that the condition started 10 to 15 years ago. See VA medical examination (June 2020). Certain chronic disabilities, such as tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Here, the record shows that VA conceded noise exposure in service. However, the only evidence pertaining to a current condition or nexus between the Veteran's claimed disability and service is his assertion that his disability is directly related to, i.e., caused by service. Although tinnitus is a chronic disability for which service connection is available on a presumptive basis under 38 C.F.R. § 3.303(b) and 38 C.F.R. § 3.309(a), see Fountain v. McDonald, 27 Vet. App. 258 (2015), here however the record does not show its onset in service or a manifestation to a compensable degree within one year of discharge from service. Further, the June 2020 VA examiner stated that the Veteran does not have a diagnosis of tinnitus and that the Veteran stated that his symptoms started 10 to 15 years ago, many years after service. Overall, the evidence does not indicate that it is at least as likely as not that the claimed disability is related to service. Therefore, service connection for tinnitus is not warranted. In light of the foregoing, the Board finds that in light of the findings and conclusions set forth in the June 2020 VA examination, and the absence of medical and lay evidence suggesting otherwise, to be persuasive and of the greatest probative value. It is apparent that the Veteran does not currently has tinnitus. Thus, the Board finds the preponderance of the evidence is against the claim for service connection for tinnitus and therefore it must be denied. REASONS FOR REMAND 3. Right knee The Veteran seeks service connection or secondary service connection for his right knee disorder. In support he reported that his right knee condition is due to his service-connected left knee disorder. See VA medical examination (October 2020). In February 2019 the Board remanded this issue with instructions for the examiner to assess the onset and etiology of any functional impairment in his right knee. In October 2020, the Veteran was provided a VA examination and the examiner stated that the Veteran’s right knee condition is less likely related to service. Id. However, the Board in this decision granted service connection for the Veteran’s left knee disorder and the Veteran’s last examination did not discussed any relation, cause or aggravation by his now service-connected left knee condition to his right knee condition. Therefore, the Board finds it necessary for a new medical examination to determine if the Veteran’s service-connected left knee condition causes or aggravates the Veteran’s right knee condition. The matter is REMANDED for the following action: 1. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran’s service-connected left knee condition can cause or aggravate his current right knee condition. In offering this opinion, the examiner should take into consideration the Veteran’s documented complains of pain, and functional impairment of his right knee due to his service-connected left knee condition. Additionally, the examiner must acknowledge and discuss the Veteran’s competent medical and lay statements of his condition and any lay evidence regarding the onset of his disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- Associate 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.