Citation Nr: 21001694 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-11 849 DATE: January 11, 2021 ORDER The appeal as to the issues of entitlement to service connection for left knee anterior cruciate ligament reconstruction residuals and right knee degenerative joint disease is dismissed. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. During the pendency of the appeal, in an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded service connection for left knee anterior cruciate ligament reconstruction residuals and right knee degenerative joint disease. 2. The evidence is at least in equipoise as to whether the Veteran’s tinnitus was related to service. CONCLUSIONS OF LAW 1. Entitlement to service connection for left knee anterior cruciate ligament reconstruction residuals and right knee degenerative joint disease has been awarded; the appeal is moot and is therefore dismissed. 38 U.S.C. § 7105(d)(5). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1970 to April 1974. In June 2016, VA received notice that the Veteran passed away on May 10, 2016. In a July 2016 decision, the Board dismissed the claims due to lack of jurisdiction upon the Veteran’s death. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. In September 2016, the RO received a request for substitution from the Veteran’s spouse, which was subsequently granted. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2016 letter, the Veteran canceled his request for a hearing. The claims were remanded in September 2017 for additional development; they now return for further appellate review. Bilateral Knee Claims In an August 2020 rating decision, the AOJ has awarded service connection for left knee anterior cruciate ligament reconstruction residuals and right knee degenerative joint disease. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In this case, as service connection for left knee anterior cruciate ligament reconstruction residuals and right knee degenerative joint disease has been awarded, the full award of benefits sought on appeal have been granted and the appeal is moot. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As there is no justiciable issue and no case or controversy left on appeal at this time, the Board dismisses this appeal as to these issues as moot. See 38 U.S.C. § 7105. Tinnitus Claim Service connection may be granted for a disability resulting from a 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 also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303 (d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if manifest 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. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. Additionally, tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). 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.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the present case, the appellant contends that the Veteran’s reported tinnitus is related to noise exposure during service. Specifically, in his January 2008 claim, the Veteran stated that the tinnitus began during his time in military service following acoustic trauma while working on the flight line. Although the Veteran’s service treatment records (STRs) are silent for complaints of tinnitus, an October 1973 audiological exam noted two and a half years of significant noise exposure while the Veteran was working around jet engine noise as a fuel specialist. The Board, therefore, finds the Veteran’s reports of in-service noise exposure to be credible, as such are consistent with the type and circumstances of his military service. Therefore, the remaining question before the Board is whether there is a nexus or link between the Veteran’s reported tinnitus and his military service. In this regard, the Board also finds that there is competent and credible evidence to establish that the Veteran’s tinnitus was related to his service. The Veteran consistently reported that the onset of his recurrent tinnitus was during service and that he continued to experience tinnitus since service. See January 2008 VA Form 21-526 Veterans Application for Compensation or Pension and January 2009 VA Compensation and Pension Exam Report. The Board notes that the Veteran is competent to identify tinnitus, to include the onset of the disorder and the continuity since his discharge and finds these assertions credible. The Board is aware of the January 2009 and November 2019 VA examiners’ conclusion that the Veteran’s tinnitus is not related to service. The rationale provided for such opinion was that the Veteran’s STRs did not document complaints of tinnitus, incidence of acoustic trauma, or any shift in hearing acuity. However, the Board notes that such opinions were based on an inaccurate factual premise, as the Veteran’s STRs do, in fact, note excessive noise exposure and document a shift in hearing acuity between the October 1970 and the October 1973 audiological examinations. Given this failure to consider all relevant evidence of record, the Board assigns less probative weight to these VA opinions, as they are based on an inaccurate premise that there was no audiological injury or any shift in hearing acuity during service. Again, the Board notes that the Veteran’s reports of symptoms appear consistent with the circumstances of his service and the Board finds no reason to doubt the credibility of the Veteran’s reports. Accordingly, the evidence is in equipoise as to whether the Veteran’s tinnitus was related to service. Therefore, after resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 C.F.R. § 5107. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.