Citation Nr: 21075182 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-13 673 DATE: December 17, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran's left knee disability manifested during active-duty service, manifested within one year of separation from service, or is otherwise etiologically related to service 2. The evidence does not demonstrate that the Veteran's right knee disability manifested during active-duty service, manifested within one year of separation from service, or is otherwise etiologically related to service 3. The Veteran's tinnitus did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 June 1968 until November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2017 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in August 2021; a transcript is associated with the claims file. 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, 1131. 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 38C.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. 38C.F.R. §3.303(d). 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability The question for the Board is whether the Veteran has a bilateral knee disability that began in service, within a year of service, or is otherwise related to service. The Board notes that the Veteran is currently diagnosed with bilateral knee arthritis. Therefore, the first Shedden element is satisfied. Furthermore, the Veteran testified at his August 2021 hearing that he performed a lot of "physical work" during service. In other words, the Veteran argued that his current left and right knee disabilities were due to "repetitive stress" injuries, and not due to any specific knee injury in service. Nevertheless, the former satisfies the second Shedden element. As such, the remaining determination is whether the two are linked. A June 2017 VA examination was obtained. Therein, the examiner diagnosed the Veteran with bilateral knee arthritis with an onset in October 2016. At the examination, the Veteran stated that his arthritic pain "began last year suddenly." The examiner opined that the Veteran's bilateral knee condition was due to service as it was related to his documented "fall time in service" and that it "appears to be a chronic condition." Unfortunately, the Board is unable to afford this VA examination any probative weight as there is no documented fall in service, and the Board finds that this opinion is therefore based on an incorrect factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). An August 2017 addendum opinion was obtained. Therein, the examiner stated that while at his VA examination the Veteran reported a fall in service, he did not report it at the time of occurrence. After review, the examiner opined that the Veteran's bilateral knee disability is not related to service, but rather, is due to the wear and tear of everyday activity and arthritis. At the August 2021 hearing, the Veteran testified that his knee pain really started to bother him in "early 2010" and has gotten progressively worse. Upon review of the above evidence, the Board finds that the Veteran is not entitled to direct service connection for his left or right knee disabilities because the third Shedden element of service connection, that of a causal relationship between the Veteran's present disabilities and service, is missing. The Board finds the August 2017 VA addendum medical opinion to be of great probative value as it is well-reasoned and supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In this examination, the examiner stated that the Veteran's knee injuries were not related to service but rather regular wear and tear due to everyday activities. Furthermore, the Veteran's service treatment records were silent for any knee complaint, treatment, or diagnosis. The Board also considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Here, however, although acknowledging that the Veteran was involved in "physical work" during service, the Board does not find that any left or right knee symptomatology following that in-service activity developed into a chronic disability subject to presumptive service connection. The Board notes that the Veteran reported at his VA examination that his knee pain began "suddenly," in October 2016; he reported at his hearing before the undersigned that his knee pain began in 2010. Even considering that the earlier of the reported dates, 2010, is correct, this is still years after the Veteran's discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving a claim, just not the only or sole factor). The Board further finds that the evidence does not show that the Veteran's arthritic changes manifested during service or within one year of his separation from service. Furthermore, even though the Veteran has credibly testified that he has endured bilateral knee pain since service, he is not competent to provide a medical nexus opinion linking his time in service to his current disabilities or determine that these symptoms were manifestations of his current arthritis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the August 2017 VA examiner considered the Veteran's credible reports and nevertheless reached the conclusion that these disabilities are less likely than not related to service. Consequently, the Board gives more probative weight to the August 2017 VA medical opinion and Veteran's own reports indicating that his knee disabilities were actually first manifested and diagnosed years after service separation. In sum, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claims for left and right knee disabilities on a direct or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for tinnitus The Veteran's lay statements, including his August 2021 testimony, and medical evidence, including the March 2019 VA examination, reveal that he has tinnitus. Thus, the first Shedden element of service connection, that of a current disability, has been met. The Veteran's MOS in service was that of a gunner's mate. As such, the Board concedes exposure to hazardous noise. Accordingly, the second Shedden element, that of an in-service incurrence, has also been met. Therefore, the remaining element to be discussed is that of a nexus between the Veteran's service and his current tinnitus. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of tinnitus. At a March 2019 VA examination, the Veteran reported that his tinnitus onset in about 1975. After review, the VA examiner opined that his tinnitus is less likely than not related to service. The examiner stated that the tinnitus "is reported by the Veteran to be post-separation." The examiner noted that April 2017 VA treatment records indicated that the Veteran reported tinnitus "last year." The examiner concluded that "regardless, both today's report and the VA note dated 4/25/17 reveal the tinnitus began post-separation." At the August 2021 hearing, the Veteran stated that he first noticed his tinnitus 15 to 20 years ago, "but I never really paid any attention to it." After reviewing all the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus. Initially, the Board finds that presumptive service connection is not warranted as there is no evidence to show that the Veteran was diagnosed or had tinnitus either during service or within the first year after separation from service. The Board finds it significant that by the Veteran's own admission, he first noticed his tinnitus well after separation from serviceeither in 1975 (per March 2019 VA examination), or in 2016 (per April 2017 VA treatment note), or in 2001 (per the August 2021 hearing). Even taking this earliest date (1975), this report is still at least 5 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds the March 2019 VA examination probative in this case. The opinion considered all the evidence of record, to include the Veteran's assertion that his tinnitus was caused by noise exposure during active service, and opined that the Veteran's tinnitus is not related to service as the tinnitus "is reported by the Veteran to be post-separation." The Board finds that this opinion constitutes probative evidence on the medical nexus question, based on a review of the Veteran's documented medical history, assertions, and physical examination. The opinion provided clear rationale based on an accurate discussion of the evidence of record, to include consideration of in-service and post-service noise exposure, as well as the Veteran's lay opinions regarding the etiology of his tinnitus. Prejean v. West, 13 Vet. App. 444 (2000). The Veteran can testify to that which he is competent to observe, such as ringing in the ears, but he is not competent to relate any symptoms of tinnitus to noise exposure in service. The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While the Veteran attributes his tinnitus to service, it does not necessarily follow that there is a relationship between current tinnitus and service. Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's tinnitus is related to active service. As the preponderance of the evidence is against the claim, it must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.