Citation Nr: 21073821 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-13 709 DATE: December 10, 2021 ORDER Service connection for tinnitus is granted. Service connection for a right ankle disability is granted. Service connection for a bilateral knee disability is denied. REMANDED Service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus is etiologically related to active duty service. 2. The Veteran's right ankle disability is etiologically related to active duty service. 3. The weight of the evidence is against a finding that the Veteran has been diagnosed with a bilateral knee disability at any time during the appeal period, and it is similarly against a finding that symptoms such as pain have resulted in a functional impairment of the bilateral knees at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran participated in a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of this hearing is of record. 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. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, arthritis and tinnitus (as an organic disease of the nervous system) are chronic diseases for which service connection may be established based on a continuity of symptomatology. See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A valid claim for service connection requires proof of a present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A "disability" is an impairment of earning capacity resulting from diseases and injuries and their residual conditions. See 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439. Pain alone, even absent a current diagnosis, may represent a disability, but only if such pain causes a functional impairment of earning capacity. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Service Connection for Tinnitus As a "subjective" ailment, the existence of tinnitus is generally determined by whether or not the veteran claims to experience it. See Charles v. Principi,16 Vet. App. 370 (2002). In this case, the Veteran has indeed claimed to have experienced symptoms of tinnitus. The Veteran, for example during his June 2021 hearing, has described experiencing ringing in his ears following his in-service exposure to loud noises while serving as a tractor trailer operator. Also during his June 2021 hearing, the Veteran claimed to have experienced tinnitus during service that became "progressively . . . louder and louder" as he aged. The Veteran explained that he did not recognize for years that the ringing in his ears was, in fact, tinnitus. Resolving the benefit of the doubt in the Veteran's favor, the continuity of symptomatology that the Veteran has described experiencing serves as the necessary nexus to establish service connection. Thus, with evidence supporting a connection between active service and the Veteran's current disability, service connection for tinnitus is warranted. In making this determination, the Board acknowledges that in July 2017, an examiner was unable to find a connection between the Veteran's tinnitus and his active duty service. With that said, the Board places relatively little probative weight on the examiner's opinion because, as noted above, the Veteran has credibly stated that while he had experienced symptoms of tinnitus since service, he did not recognize the ringing in his ears to constitute a disability until years after his separation from service. Service Connection for a Right Ankle Disability In March 1985, the Veteran was assessed with an inversion sprain of the right ankle after twisting his ankle. Following service, examiners in July 2017 and June 2021 diagnosed the Veteran with a chronic right ankle disability (variously diagnosed a chronic right ankle strain, chronic right ankle instability, and calcification of the right medial malleolus). In June 2021, an examiner opined that it was at least as likely as not that the Veteran's current right ankle disability related to his in-service injury. The examiner noted the Veteran's in-service treatment for a right ankle sprain, considered the results of physical examination of the Veteran, and discussed medical literature supporting a finding of an inversion sprain resulting in chronic disability. Additionally, in August 2021, Dr. G.B., a private physician, opined that the Veteran's right ankle disability, which included findings consistent with an old injury, likely related to his in-service right ankle injury. Thus, with evidence supporting a connection between the Veteran's in-service right ankle injury his current disability, service connection for a right ankle disability is warranted. In making this determination, the Board acknowledges that in July 2017, an examiner opined that it was less likely than not that the Veteran's right ankle disability related to his service. The Board finds the probative value of this opinion to be approximately comparable to the June 2021 etiological opinion. As such, the Board has resolved the benefit of the doubt in favor of the Veteran, and it places the greatest probative weight on the June 2021 opinion. Service Connection for a Bilateral Knee Disability The Veteran has not been provided with an examination addressing his claimed bilateral knee disability. VA does not have to provide a medical examination unless there is an indication that a claimed disability may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As is discussed in greater detail below, the weight of the evidence is against a finding that the Veteran has a current bilateral knee disability or functional impairment of either knee. Without a current disability, VA's duty to provide the veteran with an examination has not been triggered. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran filed his claim for service connection in May 2017. Since that time, the Veteran has not sought treatment for, or even described to clinicians, any symptoms affecting the knees. During his June 2021 hearing, the Veteran broadly claimed to have experienced knee problems as the result of service, but he did not describe the functional impact associated with this disability, nor did he indicate that he had ever sought treatment for such disability. The weight of the medical evidence is against a finding that the Veteran has a bilateral knee disability. To the extent that the Veteran indeed believes that he has such a disability, the Veteran is competent to testify as to readily observable symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). With that said, the Veteran, as a layperson, is not competent to report that his symptoms rise to the level of a "disability" for VA purposes. Thus, while the Veteran may experience certain symptoms, his statements are insufficient to establish the presence of a bilateral knee disability or even functional loss of the bilateral knees, particularly when he has not sought treatment for such symptoms. The weight of the evidence does not establish the presence of a bilateral knee disability, and the claim for service connection is denied. REASONS FOR REMAND The Veteran argues that his back disability is related to his active duty service. The Veteran has been diagnosed with a back disability; for example, an August 2017 MRI showed degenerative disc disease of the Veteran's lumbar spine. The Veteran has argued, for example during his June 2021 hearing, is related to his in-service lifting of heavy weights. The record does not otherwise show in-service treatment for symptoms affecting the Veteran's back. In August 2021, a private clinician opined, without reviewing the evidentiary record, that the Veteran's back disability related to a "significant injury to his low back" that occurred during service. The clinician's opinion is itself inadequate because the record does not show a "significant injury" to the Veteran's low back during service. The opinion additionally fails to address evidence contrary to its finding, including, for example, the Veteran's August 2017 statement to a clinician that he had a 4 year history of back pain, and he otherwise described experiencing severe back pain while lifting weights approximately 26 years before (or in approximately 1991). While this etiological opinion is itself inadequate, it suggests a possible connection between the Veteran's current back disability and his in-service experiences. The Veteran has not been afforded with a VA examination addressing the nature and etiology of his back disability, and on remand, the AOJ should schedule the Veteran to undergo such an examination. This matter is REMANDED for the following actions: Schedule the Veteran for a VA examination to determine the nature and etiology of his back disability. After a physical examination of the Veteran, a review of the Veteran's claims file, and consideration of the Veteran's lay statements, the examiner should address whether it is at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's back disability: a. is related to any incident of his active duty service, to include activities such as carrying heavy weights. b. was proximately due to the Veteran's service-connected right ankle disability. c. underwent any incremental increase in disability, regardless of its permanence, due to the service-connected right ankle disability. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The examiner should discuss all pertinent evidence of record, including the Veteran's August 2017 description of the duration of his back pain, and the August 2021 opinion linking the Veteran's back disability to his in-service experiences. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.