Citation Nr: 21077224 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-20 505 DATE: December 29, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial rating in excess of 20 percent for left knee status post meniscectomy is remanded. Entitlement to an initial rating in excess of 20 percent for right knee status post meniscectomy is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected allergic rhinitis is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his current tinnitus had its onset during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is in the Veteran's file. Entitlement to service connection for tinnitus The Veteran contends that his current tinnitus is the result of his active service. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). In addition, certain listed chronic diseases, such as tinnitus, as a disease of the nervous system, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's STRs do not contain any complaints, symptoms, treatment, or diagnosis of tinnitus. The February 1980 entrance audiogram revealed normal hearing. The Veteran's DD 214 indicated that the Veteran's military occupational specialties (MOS) included material facilities specialist, which has a low probability for noise exposure, however, the Veteran credibly testified he was exposed to hazardous noise from working on the flight line. A VA examination was conducted in April 2014. The Veteran reported daily bilateral tinnitus, which he has had since military service. The examiner was unable to provide an opinion without resorting to speculation, as there were no hearing records available for review and he noted there were other contributors to the Veteran's tinnitus, such as occupational noise exposure. In his August 2021 Board hearing, the Veteran stated that he first noticed ringing in his ears during service. He stated his ears would be ringing and buzzing after working on the flight line, driving a forklift, and loading up C-141s and C-130s. The Veteran is competent to report a history of symptoms such as this. The nature of the Veteran's duties establishes that he was exposed to military noise and he has a current diagnosis of tinnitus. This is a condition which by its nature the Veteran is competent to diagnose, and when present is considered disabling to a compensable degree. 38 C.F.R. § 4.87, Diagnostic Code 6260. On this record, there are few reasons to doubt the Veteran's statements regarding persistent and recurrent ringing in his ears since service. Although there is no positive nexus opinion of record, the Board finds that in this case there is at least an approximate balance of positive and negative evidence as to whether the Veteran's tinnitus initially manifested during his active service and continued ever since. When the evidence is in such relative equipoise, the Board must give the claimant the benefit of the doubt. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board finds that the criteria for service connection for tinnitus are met. REASONS FOR REMAND 1. Entitlement to service connection for a left and right knee condition is remanded. The Veteran was last afforded a VA examination for his knee disability in April 2014. Since that time, he has asserted that his symptoms have worsened, and he now needs the use of a cane as his knees lock up. See Board Hearing transcript p. 4. Further, he submitted a statement from his private provider in August 2019, who stated he has severe pain and limitations in his bilateral knee with joint line tenderness and decreased range of motion. Given these allegations of worsening symptoms, the Board believes an updated VA examination is necessary before addressing the appeal. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for headaches, to include as secondary to service-connected allergic rhinitis is remanded. The Veteran claims service connection is warranted for headaches, which he contends he has had continually since service, or in the alternative, are related to his service-connected allergic rhinitis. Service treatment records confirm the Veteran complained of headaches in service. He has not been afforded an examination to determine the nature of any headaches present and the potential causes. The Veteran testified that although he is not currently receiving treatment for headaches, his provider told him his headaches could be sinus headaches, migraines, or just bad headaches. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches, because no VA examiner has opined whether the Veteran has a current disability of headaches and, if so, whether they are causally connected to service or the service-connected allergic rhinitis. A remand is, therefore, necessary. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records he wishes considered regarding this appeal, which records should be sought. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must record the results of range of motion testing for pain on both active and passive motion. If it is not possible to conduct any requested testing, the reasons for that should be explained. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache disability. If present, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headache disability: (a.) had its onset during active duty or is otherwise related to the Veteran's service, to include the Veteran's reported in-service headaches; or, (b.) is proximately due to his service-connected allergic rhinitis; or (c.) has been aggravated (worsened beyond the natural progression) by his service-connected allergic rhinitis. 4. Readjudicate the claim. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.