Citation Nr: 21003505 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-58 679 DATE: January 21, 2021 ORDER Entitlement to service connection for right knee degenerative joint disease, to include scars is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT The Veteran’s right knee condition began during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee degenerative joint disease, including scars have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to March 1978. The Veteran presented sworn testimony at November 2020 Board hearing before the undersigned VLJ. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show:” (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Some chronic diseases are presumed by law and regulation to have been incurred in service even though there is no evidence of such disease during the period of service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period, and if following a period of service of 90 days or more of continuous active service. 38 C.F.R. §§ 3.307, 3.309. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for right knee degenerative joint disease, including scars. The Veteran claims entitlement to service connection for a right knee disability. In support, he reports that he has had recurrent right knee problems since service. Service treatment records note complaints and treatment for right knee pain. See, e.g., STRs dated April 1976. VA treatment records confirm a right knee degenerative joint disease with scars. See June 2014 VA examination. The Veteran was afforded a Knee and Lower Leg Conditions VA examination in June 2014. While the VA examiner opined that the Veteran’s right knee disability was less likely than not related service, the examiner failed to provide adequate rationale, stating was no evidence of chronic, recurrent, or relapsing remitting condition of the right knee attributable to military service nor to any documented or reported episodes of knee trauma during service. The examiner further stated that the Veteran has had no symptoms of any disability from 1978 to June 2014. The examiner did not consider the Veteran’s lay statements regarding continuous injury since service, which were submitted subsequent to the June 2014 VA examination. For example, in a May 2015 statement, the Veteran’s brother-in-law states that he witnessed the Veteran’s right knee “popping out of joint to such a degree that he had to seek medical attention” after he was discharged from the Army. See May 1015 Statement from J.K. The Veteran’s mother also submitted a letter in May 2015, stating that the Veteran’s knee was fine before service, but would pop “on the outside of his right knee” after he came home from service. See May 2015 statement from P.M. Similarly, L.K., the Veteran’s sister submitted a letter in May 2015, explaining that the Veteran’s knee would dislocate causing a knot to emerge on the outside of his right knee shortly after his discharge in 1978. See May 2015 statement from L.K. At the November 2020 Board Hearing, the Veteran testified that he has right knee pain that began while on active duty and has been recurrent since service. Specifically, he reports that he injured his right knee on the bumper of a truck during active duty service. He also testified that he played football and baseball while in service. He explained that his right knee disability impacts his civilian occupation and private recreational activities. Additionally, he described intermittent pain that causes him to “drop” instantly when exacerbated. Id. This is highly probative evidence in favor of the claim. Here, the Board finds that the competent and credible lay evidence shows that the Veteran has had recurrent right knee problems since service. Further, he has been diagnosed as having degenerative joint disease of the right knee. As such, the Board finds that service connection is warranted for right knee degenerative joint disease, including scars. 38 C.F.R. § 3.303(b). The appeal is granted. REASONS FOR REMAND 2. Entitlement to service connection for right ear hearing loss is remanded. In his April 2020 hearing, the Veteran testified that he has right ear hearing loss due to acoustic trauma he sustained while in service. The Veteran received a VA examination in June 2014 and was found to have no current right ear hearing loss disability for VA purposes. However, the reports that his right ear hearing loss has worsened since that time. As such, another VA examination is necessary to adjudicate this appeal. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The matters are REMANDED for the following action: Schedule the Veteran for a VA audiology examination (or telehealth interview, records review, etc., if an in-person examination is not feasible). The claims folder and this remand must be made available to the examiner for review. The examination should include any necessary diagnostic testing or evaluation. The examiner should provide an opinion as to whether the Veteran has a right ear hearing loss disability that is at least as likely as not related to service, to include military noise exposure. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.