Citation Nr: 21067723 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-50 333A DATE: November 5, 2021 ORDER Service connection for a right knee disability is granted. Service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his right knee disability is at least as likely as not related to his active service. 2. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss is at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to June 1989. In November 2019, the Board of Veterans' Appeals (Board) remanded this appeal for further evidentiary development. Regarding the claim for hearing loss, the Board notes that the initial service connection claim was one for bilateral hearing loss. During the pendency of the claim, a Regional Office (RO) granted service connection for right ear hearing loss. See July 2020 rating decision. As such, the issue pertaining to hearing loss that remains on appeal is one for service connection for left ear hearing loss. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence is presumed for certain chronic diseases, including sensorineural hearing loss, if the disease manifested to a compensable degree within one year after separation from active service. While the disease does not need to 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. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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. 38 U.S.C. § 5107(b); 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. Alemany v. Brown, 9 Vet. App. 518 (1996). Right Knee Disability The Veteran asserts that his currently diagnosed right knee condition resulted from walking up and down various helicopters and conducting repairs of propellers and engines while in service. In this regard, the Board acknowledges that, throughout the appeal period, the Veteran has been diagnosed with patellofemoral syndrome and a meniscal tear of his right knee. Effusion of this joint has also been shown. Thus, the remaining question is whether these current right knee diagnoses are related to the Veteran's active service. STRs indicate that, upon separation, the Veteran noted that he had cramps in both his knees secondary to prolonged sitting and standing. An examiner noted that no treatment was sought and that there were no complication and no sequelae (NCNS). A physical examination of the lower extremities was normal. Pursuant to the November 2019 Board remand, the Veteran was afforded VA examination in December 2019. The examiner diagnosed a meniscal tear and opined that it was less likely than not that the Veteran's right knee condition was related to his active service. The examiner explained that the record contained recent complaints of right knee pain but no such complaints during the Veteran's military service. Another medical opinion was provided in August 2020 in which the examiner gave a negative nexus opinion. Specifically, this examiner stated that the Veteran's reports of right knee pain began nearly 30 years after his separation from service and that, therefore, there is no chronicity of care records showing the current knee condition is a continuation or progression of the condition that began in service. The Board finds the Veteran's competent lay reports as to the onset of his right knee symptoms to be credible. He has consistently reported that he has had progressive right knee pain since service. As a lay person, he is competent to give evidence about observable symptoms such as knee pain. Layno v. Brown, 6 Vet. App. 465 (1994). While the December 2019 and the August 2020 VA examiners opined that the Veteran's right knee condition is not related to service, they failed to consider his lay testimony regarding the nature and onset of his right knee condition. As such, the Board assigns less probative weight to the December 2019 and August 2020 VA opinions. In light of the circumstances in this case, and in resolving reasonable doubt in the Veteran's favor, the Board finds that his right knee disability is at least as likely as not related to his service. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for a right knee disability is warranted. Left Ear Hearing Loss Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran asserts that his currently diagnosed left ear hearing loss resulted from exposure to hazardous noise due to his military occupational specialty (MOS) as a turboprop propulsion mechanic. The Board acknowledges that the Veteran has a current diagnosis of left ear sensorineural hearing loss and that VA has already conceded his exposure to hazardous noise as his in-service MOS has a high probability of noise exposure. Thus, the remaining issue is whether the Veteran's in-service noise exposure is related to his current left ear hearing loss diagnosis. Service treatment records (STRs) do not show any complaints of, treatment for, or findings of, left ear hearing loss. However, the record shows that the Veteran had various in-service audiogram tests and that, in October 1986, he was issued hearing protection due to improper seal of earplugs. A June 2017 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to a high probability of acoustic trauma sustained during service. The examiner explained that the Veteran's STRs showed no shift in hearing thresholds during service. Although hazardous noise exposure was a known risk factor for hearing loss, the loss was expected to be seen at the time of exposure or shortly thereafter and not expected to worsen over time once the noise was removed. However, in November 2019, the Board found this opinion to be inadequate as there is evidence that the examiner reviewed and relied on an Institute of Medicine report of which the United States Court of Appeals for Veteran's Claims found to be contradictory regarding delayed-onset hearing loss. As such, the Board finds this opinion inadequate for adjudication. Pursuant to the November 2019 Board remand, the Veteran was afforded VA examination in December 2019. The examiner opined that the Veteran's left ear hearing loss is less likely than not related to in-service noise exposure. The examiner acknowledged that the Veteran's MOS had a high probability for hazardous noise exposure but noted that his April 1989 separation audiogram showed normal hearing in the left ear, with no significant threshold shift at any frequencies tested in the left ear. The examiner concluded that the Veteran's left ear hearing loss is not the result of, or caused by, in-service noise exposure. The Board acknowledges that there is no objective evidence of left ear hearing loss in service. However, the Veteran consistently reported that he has had progressive hearing loss since in-service noise exposure. As a lay person, he is competent to give evidence about observable symptoms such as diminished hearing. Layno v. Brown, 6 Vet. App. 465 (1994). Further, while the December 2019 VA examiner opined that the Veteran's left ear hearing loss is not related to in-service noise exposure, the examiner failed to consider the Veteran's lay testimony regarding the nature and onset of his left ear hearing loss. As such, the Board assigns less probative weight to the December 2019 VA opinion. In light of the circumstances in this case, and in resolving reasonable doubt in the Veteran's favor, the Board finds that his left ear hearing loss is at least as likely as not related to his active service. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for left ear hearing loss is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.