Citation Nr: 21002835 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 17-58 574 DATE: January 15, 2021 ORDER Entitlement to service connection for right knee disability manifested by pain is granted. Entitlement to service connection for left elbow disability manifested by pain is granted. Entitlement to service connection for lumbar spine disability manifested by pain is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced that the Veteran has a right knee disability manifested by pain related to his active duty service. 2. The evidence is at least evenly balanced that the Veteran has a left elbow disability manifested by pain related to his active duty service. 3. The evidence is at least evenly balanced that the Veteran has a lumbar spine disability manifested by pain related to his active duty service. 4. The evidence is at least evenly balanced that the Veteran has tinnitus related to his active duty service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a right knee disability manifested by pain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a left elbow disability manifested by pain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a lumbar spine disability manifested by pain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are 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 from November 1980 to February 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for tinnitus, right knee condition, left elbow condition, and lumbar back condition. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 hearing. A transcript of the hearing has not yet been associated with the claims file, but as the benefit sought is being granted in full, a transcript is unnecessary. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Service connection for right knee disability manifested by pain. 2. Service connection for left elbow disability manifested by pain. 3. Service connection for lumbar spine disability manifested by pain. 4. Service connection for tinnitus. The Veteran contends he suffers from pain in his right knee, left elbow, and low back, and from tinnitus due to his military service. Specifically, evidence submitted on his behalf attribute his chronic musculoskeletal pain to an in-service automobile accident injury, and attribute his tinnitus to the same injury as well as noise exposure. For the following reasons, entitlement to service connection for the disabilities claimed on appeal is warranted. Medical records during the Veteran’s service show he was injured when on a bicycle from being struck by a vehicle. See e.g. October 1981 handwritten progress note (hit while riding a bicycle with complaints of right knee pain with multiple lacerations of left elbow upper arm and left flank); October 1981 clinical record (complaints of left elbow and right knee pain; “I was hit by a car”). In addition to sustaining injuries to his back, right knee, and left elbow, there is documentation pertaining to the ear as well. See October 1981 discharge form. There is also an operation report from that time containing the description of the surgery the Veteran underwent to treat his wounds. The Veteran’s service treatment records show that at his December 1983 separation examination, upon clinical evaluation, the Veteran’s spine was not indicated as normal, and the Veteran had scars. See December 1983 Report of Medical Examination (left post inf. back, left olecranon secondary to automobile accident). Thus, he meets the in-service injury or disease requirement for all issues currently before the Board. Evidence in the claims file shows the Veteran has tinnitus. See August 2019 private progress note (ringing in ears, bilateral, chronic). The Veteran experiences pain due to the disabilities pertaining to right knee, left elbow, and spine claimed on appeal. See January 2021 private Disability Benefits Questionnaire (Diagnosis - chronic lumbar, thoracic, cervical pain with segmental and somatic dysfunction; myalgia). Evidence in the claims file also shows the Veteran’s range of motion is limited due to pain from his arm, he cannot squat well, stand for long periods of time, and walks with a limp due to his right knee pain, and he finds it difficult to bend at the waist and experiences pain when attempting to pick up objects due to his back. See July 2018 buddy statement; see also July 2020 Doctor N.H. opinion (severely impacted by his chronic joint and back pain; activities limited). Therefore, he meets the current disability requirement for his right knee, left elbow, and lumbar spine claims on appeal, even in the absence of a specific diagnosis. Saunders, 886 F.3d at 1364-65 (a diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity). Regarding whether the Veteran’s current disabilities are related to service, the July 2018 buddy statement contains that since being struck by an intoxicated officer driving a car on the Navy base almost killing him, the Veteran suffered extensive damage to his left arm, right knee, head, and back, and that he complained of ringing in his ears following the accident. An April 2019 private opinion by Doctor S. relied on noise exposure during active duty with no ear protection. Doctor S. opined tinnitus is more likely than not associated with his exposure to loud noise during his service in the military. In July 2020, the Veteran’s Doctor N.H. found that the Veteran had chronic right knee pain from his accident during service. Regarding tinnitus, Doctor N.H. wrote that according to the American Tinnitus Association, a head or neck injury is shown to cause tinnitus, and that considering this, along with the Veteran’s occupational history since service, the Veteran’s tinnitus is at least as likely as not due to injuries sustained in service. The Veteran is competent to report continuous tinnitus and pain symptoms in the years since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a Veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). There is nothing to explicitly contradict the Veteran’s testimony, and that testimony is consistent with the evidence of record. Although the Board could remand the claims to obtain a VA medical opinion, such a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim for the reasons indicated. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s right knee disability manifested by pain, left elbow disability manifested by pain, lumbar spine disability manifested by pain, and tinnitus are related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for these disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.