Citation Nr: 21066339 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-44 881 DATE: October 29, 2021 ORDER Service connection for tinnitus is granted. Service connection for osteoarthritis of the right knee is granted. Service connection for osteoarthritis of the left knee is granted. FINDINGS OF FACT 1. The Veteran has a current disability of tinnitus. 2. The Veteran experienced acoustic trauma in service due to exposure to a fuel-dump explosion. 3. The current tinnitus is causally connected to the in-service acoustic trauma. 4. The Veteran has a current disability of osteoarthritis of both knees. 5. Symptoms of osteoarthritis of the knees were chronic in service and were continuous since service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for osteoarthritis of the right knee have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for osteoarthritis of the left knee have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5103, 5013A, 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 Air Force during Peacetime and the Korean Conflict Era from March 1953 to March 1957. The basis of the current decision is a December 2015 Rating Decision denying service connection for tinnitus and bilateral knee osteoarthritis. The Veteran filed a timely appeal and requested a hearing before the Board. A video hearing was held in November 2020 before the undersigned Veterans Law Judge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Tinnitus (as an organic disease of the nervous system) and arthritis are "chronic" diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as tinnitus or arthritis become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 1. Service connection for tinnitus The Veteran contends that he has tinnitus due to exposure to an explosion at a fuel depot while fueling planes during service. See January 2016 Notice of Disagreement. The evidence shows a current disability of tinnitus. VA treatment records indicate treatment for and a diagnosis of tinnitus in October 2015, and the Veteran is competent to report the presence of tinnitus. The Board finds that the lay and medical evidence is at least in equipoise on the question of whether tinnitus is causally connected to in-service acoustic trauma. Of note, most of the Veteran's service records were destroyed in the 1973 National Archives. Accordingly, the Board has a heightened duty to assist, and heightened obligations to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). As noted above, the Veteran has reported that in around January 1955, while he was in service, he was near a fuel depot that exploded, causing a loud noise that injured his ears. The Veteran has credibly reported this incident, and no contemporary records support or oppose this contention. The Veteran has consistently reported this incident. For example, for treatment purposes with VA in July 2015, the Veteran reported that he was experiencing ringing and waterfall noises in his ears due to an explosion in 1955. In the January 2016 Notice of Disagreement, the Veteran again reported that his hearing loss and tinnitus were caused by an explosion about 30 feet away at a fuel dump around January 1955, during service. The Veteran repeated this incident a third time in the hearing before the Board in November 2020. As the Veteran is competent and appears credible, and no evidence contradicts this incident, the Board finds that the Veteran was exposed to acoustic trauma from an explosion at a fuel dump in service. The Veteran has been inconsistent about whether the tinnitus began in service or after service. Treatment records in July 2015 show reports that the tinnitus began in 1955, while treatment records from October 2015 report that the tinnitus began around 2011 to 2012. During the November 2020 Board hearing, the Veteran clarified that the tinnitus began after service. The Veteran obtained a private medical opinion regarding nexus between the tinnitus and service in January 2021. The private physician opined that it is at least as likely as not that the tinnitus is due to the explosion in service, based on the highly probable acoustic trauma resulting from being in close proximity to a large explosion. The factual assumptions in this opinion are correct, as the Board has resolved reasonable doubt to find that such an in-service explosion occurred. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for tinnitus have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As direct service connection is being granted, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service connection for osteoarthritis of the right knee 3. Service connection for osteoarthritis of the left knee The Veteran contends that he experienced knee pain during service based on kneeling and removing fuel hoses from planes while refueling them. See January 2016 Notice of Disagreement. The evidence shows a current diagnosis of osteoarthritis of both knees. There was a diagnosis of knee osteoarthritis by at least September 2000. VA treatment records from September 2000 indicate that the Veteran was already being treated for bilateral osteoarthritis, but VA records from before that point are not in the record before the Board. As noted above, most service records for the Veteran have been accidentally destroyed by a 1973 fire. The Board finds that the lay and medical evidence is at least in equipoise on the question of whether the symptoms of bilateral osteoarthritis of the knees were chronic in service and were continuous since service. At the November 2020 Board hearing, the Veteran testified that while working as a fuel attendant on the flight line he began experiencing bilateral knee pain during service. The Veteran has consistently made this assertion, providing a similar statement in the January 2016 Notice of Disagreement. The January 2021 private physician's opinion, which included a nexus opinion about the knees, noted that the Veteran had reported hurting his knees during service. As the Veteran is competent to make these statements, and no evidence in the record serves to diminish the credibility of the statements, the Board finds that knee pain began during service. VA treatment records that are in the record before the Board only go back to September 2000. As noted above, the September 2000 VA treatment records indicate that the Veteran had been receiving continuing treatment for bilateral osteoarthritis of the knees, without indicating when the treatment had begun. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for osteoarthritis of both knees have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As presumptive service connection is being granted, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.