Citation Nr: 21074321 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-15 705A DATE: December 14, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to his now service-connected right knee disability, is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability was incurred in service. 2. Tinnitus had its onset in or is otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to September 2005. The Veteran testified before the undersigned Veterans Law Judge in August 2021. A copy of the hearing transcript is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a right knee disability. The Veteran's February 2001 entrance exam reflected a normal clinical evaluation of the lower extremities. In a report of medical history completed at that time the Veteran reported no issues related to his knee. The Board notes that recent treatment records, dated in 2015, reflect a knee injury sixteen years prior, dating back to before service entrance. See June 2015 Treatment Record. Nevertheless, the Veteran's February 2001 entrance examination reflected a normal clinical evaluation of his knees. As the Veteran's knee evaluation was determined to be normal at entrance into service, the Veteran is presumed to have been in a sound condition. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Service treatment records reflect treatment for his right knee. The Veteran was treated on several occasions in October 2001 for a right knee strain. A February 2004 in-service treatment record noted right knee pain, intermittent, for one year. Service treatment records again note treatment for his right knee on several occasions in July 2004. A September 2004 service treatment record noted right knee problems had resolved following treatment with physical therapy. Nevertheless, an October 2004 service treatment record then notes that the Veteran's right knee gets out of place for a couple of years. A normal separation examination is of record. The Veteran has consistently reported that the onset of his right knee disability was in service, and it has been chronic since that time. A January 2017 VA examination and opinion were provided. The VA examiner provided a negative etiological opinion regarding this disability, and its relationship to service. The Board notes that the January 2017 VA examiner failed to mention the October 2004 service treatment record documenting continuing issues with the Veteran's right knee, despite the September 2004 treatment record noting that the condition had resolved. The Board finds the rationale provided by the VA examiner is in conflict with the service treatment records available. The service treatment records confirm that the Veteran had continuing right knee issues throughout his period of service. As such, little probative value is accorded to this medical opinion. While VA could undertake additional development with respect to his disability (to obtain an additional etiological opinion), based on the fact that the Veteran was treated for right knee issues in service, continued to complain of similar symptomatology following service, and continues to suffer from problems associated with his right knee, the Board will resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The nature and extent of the problem related to service is not before the Board. Accordingly, the Board concludes that a grant of service connection for a right knee disability is warranted. 2. Entitlement to service connection for tinnitus. The Veteran alleges that he suffers from tinnitus due to in-service noise exposure. Service treatment records confirm exposure to noise. For example, an October 2003 Post Deployment Health Assessment noted reports by the Veteran of often being exposed to loud noises. A June 2002 audiogram noted a significant auditory threshold shift. In an in-service Medical Surveillance Questionnaire, the Veteran reported a potential hazard as "noise." The Veteran reports long-standing tinnitus, first recognizing symptoms as tinnitus, around 2008. The Veteran testified at his August 2021 BVA hearing that although he first began noticing it around 2008, he may have experienced it earlier but did not pay attention to it before that time. Tinnitus is unlike many disorders in that the Veteran is competent to self-diagnose this disorder despite having no medical training, and it is not a disorder that requires a determination that is 'medical in nature.' Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Rather, as a disorder that is identified purely on perceived symptoms, he is competent to testify about the presence of tinnitus, if his testimony is credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that a January 2017 VA examiner opined that the Veteran's tinnitus is not related to service. This opinion appears to be based, in part, because the Veteran's service treatment records do not reflect complaints of tinnitus. The Board places little probative value on the VA examination of record. The Veteran is credible to testify as to the onset of his tinnitus, and the service personnel records support the Veteran's claim of in-service noise exposure. While VA could undertake additional development to clarify the etiology of the Veteran's reported tinnitus, based on the Veteran's competent statements, the inherently subjective nature of audiological symptomatology, and his service that included acoustic trauma, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board concludes that a grant of service connection for tinnitus is warranted. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issue remaining on appeal. 1. Entitlement to service connection for a left knee disability, to include as secondary to his now service-connected right knee disability, is remanded. As noted above, the Veteran has now been granted service connection for a right knee disability. The Veteran claims that his left knee disability is secondary to this now-service connected right knee disability. Although a January 2017 VA examination and opinion were completed, the VA examiner did not address the Veteran's secondary service connection claim. Additionally, the examination reflected that the Veteran did not have a left knee diagnosis. Nevertheless, the Veteran continues to complain of left knee symptomatology, and testified regarding his left knee issues at his August 2021 Board hearing. The Board finds that an additional VA examination and opinion are needed to adjudicate the Veteran's claim. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his left knee disability. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with the examination, and the examiner must indicate that such review occurred. The examiner should provide thorough, well-reasoned opinions on each of the following: (a) Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left knee disability had its clinical onset during the Veteran's active duty service, within one year of service separation, or is otherwise etiologically related to his active service. (b) Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left knee disability was caused by the Veteran's now service-connected right knee disability. (c) Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left knee disability was aggravated by the Veteran's now service-connected right knee disability. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.