Citation Nr: 21077112 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-28 010 DATE: December 28, 2021 ORDER Service connection for tinnitus is granted. Service connection for scar on left forearm is denied. REMANDED Service connection for bilateral hearing loss. Service connection for left knee disorder. FINDINGS OF FACT 1. The Veteran served on active duty from March 1983 to March 1986. 2. Tinnitus has been continuous since service. 3. A left forearm scar was not shown in service and is not etiologically or causally related to service. CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A (2012); 38 C.F.R. § 3.303, 3.307 (2021). 2. A left forearm scar was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified at a July 2019 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Tinnitus Tinnitus is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). A review of the record reflects that the Veteran has a diagnosis of tinnitus. Specifically, a January 2013 private treatment record noted that the Veteran was diagnosed with tinnitus and an April 2016 VA audio examination reflected that he reported recurrent tinnitus. Based upon this medical evidence, as well as the fact that tinnitus is a disability for which self-diagnosis is appropriate, Charles v. Principi, 16 Vet. App. 370 (2002), a current disability has been shown. As to the second element of service connection an in-service incurrence the Veteran's military occupational specialty (MOS) was medical specialist, which has a low probability of noise exposure. However, in his June 2016 VA form 9, he reported that tinnitus began in basic training, while firing an M-60 gun, he heard a large popping sound and pain in his left ear. He also related that he was later diving into the base pool when he heard a sharp popping sound and pain in his ear as he had ruptured his ear drum again. Notably, his service treatment records (STRs) show that he was treated for a perforated ear drum in July 1985 and he is service connected for this disability. There is no evidence of record which tends to contradict his testimony. As such, the second element of service connection has been met. As to continuity, at the July 2019 hearing, the Veteran testified that he began to experience tinnitus in service about the time of his perforated left ear drum and that it had continued since service. While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The April 2016 VA examination indicated that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner noted that the Veteran's MOS of medical laboratory specialist had a low probability for hazardous noise exposure and the absence of complaints of or history of tinnitus during service or reports of acoustic trauma in the military. However, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" disease of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of "continuous" symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service, and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. Scar on Left Forearm The Veteran claims he has a left forearm scar caused by service. The first element of service connection is a current disability. A review of the medical evidence fails to show a diagnosis of a left forearm scar. While a left forearm scar is lay observable, even if a current disability is assumed, a review of the STRs fails to show any treatment for or diagnosis of a left forearm scar. On the November 1982 enlistment examination, scars on the right knee, elbow and right supraorbital (lacerations) were noted. Therefore, scars on the right knee, elbow and right supraorbital were noted on his entrance to active duty. However, the Veteran claims a left forearm scar in-service when he and his fellow service members would practice suturing on each other. Similarly, the STRs fail to show that any event in service resulted in a left forearm scar. Given the lack of evidence of an in-service incurrence, service connection is not warranted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With regard to the claim for service connection for bilateral hearing loss, a May 2018 report of general information states "[t]he Veteran states he had an audio test done in the past two months. The Veteran states that a contract vendor scheduled him the appointment." The cited audio test is not of record. As such, a remand is required in order to obtain the missing treatment record. With regard to the claim for service connection for a left knee disorder, In May 2012, he was afforded a VA knee examination. The examiner diagnosed left knee degenerative joint disease but did not provide any opinion as to the etiology. The examiner noted that she could not resolve the issue without resorting to mere speculation. She explained that the Veteran did have parachute jumps in-service and knee injuries were not uncommon for this type of activity; however, she indicated that there was no clinical evidence of left knee injury found in the medical records. She further explained that the Veteran had a severe bicycle versus truck accident with numerous injuries in 2008 and there were two VA medical notes that gave conflicting reports of whether or not he had a left knee injury in that accident. She indicated there were no notes from the civilian hospital about the accident or his injuries were found and these notes were essential to determining if there was a left knee injury during that accident. As such, a remand is required. The Board recognizes that the August 2019 statement from Dr. T. H. indicated that the Veteran's left knee pain was related to service; however, the physician did not provide an adequate rationale in support of the opinion so it is not sufficient to grant service-connection. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records and associate them with the claims file, specifically the 2018 audio test and any records regarding treatment at a civilian hospital related to a bicycle accident. Document all attempts to obtain these records. If the search for such records has negative results, the file must be properly documented as to the unavailability of these records, and all proper action must be taken. 2. Direct the claims file to a clinician to address whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee disorder began in service, was caused by service, or is otherwise related to service, to include the Veteran's report of parachute jumps in service. A rationale for all opinions should be provided. 3. If an opinion cannot be provided without an examination, such examination should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.