Citation Nr: 21015162 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-53 952 DATE: March 16, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran’s tinnitus is attributable to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1982. This matter came before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a March 2021 hearing. 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus was caused by noise exposure during active service and that it had its onset in service. The Board concludes that service connection is warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Presumptive service connection may be established for certain chronic diseases manifesting themselves to a certain degree within a certain time after service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Tinnitus is an organic disease of the nervous system and is therefore considered a chronic disease for VA purposes. Service connection based on continuity of symptomatology is therefore applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271–72 (2015). Lay 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). A May 2015 VA audiological examination found that the Veteran did not report recurrent tinnitus, stating that the Veteran denied the presence of tinnitus. The examiner did not offer an opinion regarding onset or etiology. The Board finds that the VA examination is adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report is based on the Veteran’s statements, in-person examination and the examiners’ observations, the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the March 2021 Board hearing, the Veteran stated that he had persistent ringing in his ears that was generally in the background but then grew stronger at times until he had to stop what he was doing and try to “think it off.” He reported that the ringing in his ears began in service and that he had it ever since to varying degrees. In the case of a wholly lay-observable disability such as tinnitus, the Veteran is competent to report both its onset date and its persistence since that date. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, his statements are entitled to significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board therefore finds that the competent evidence of record is at least in equipoise regarding the onset and persistence of the Veteran’s tinnitus. While the May 2015 VA examiner did not find tinnitus, the examiner did not offer an opinion regarding onset and the Veteran’s competent and credible lay statements clearly described recurrent tinnitus that began in service and has persisted since service. Resolving all doubt in favor of the Veteran, the Board therefore finds that the preponderance of the competent evidence establishes that the Veteran has a current disability of tinnitus that had its onset in service. Service connection is therefore warranted. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (2013). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his right knee disability is due to an injury in service. February 1982 service treatment records show that the Veteran injured his right knee while playing basketball. March 1982 records to recheck the right knee show findings of knee strain, swelling and effusion. The Veteran has not yet been afforded a VA examination in connection with this issue. He submitted December 2018 VA treatment records showing a diagnosis of right knee osteoarthritis. At the March 2021 Board hearing, he reported that after his right knee injury, it was further aggravated by having to go up and down stairs while on board ship and that he has had right knee pain since service. As the Veteran has a current right knee disability and the record shows an in-service injury and the Veteran has submitted lay evidence of ongoing symptoms, remand for a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a left ankle disability, to include as secondary to a right knee disability, is remanded. 3. Entitlement to service connection for a right ankle disability, to include as secondary to a right knee disability, is remanded. 4. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that his left and right ankle and left knee disabilities began in service and that they are related to his right knee disability. The Veteran has not yet been afforded a VA examination in connection with these issues. The Veteran submitted March 2019 VA treatment records showing a diagnosis of left ankle degenerative joint disease, May 2019 VA treatment records showing degenerative spurring of the right ankle and March 2021 VA treatment records showing left knee osteoarthritis. At the March 2021 Board hearing, the Veteran reported that he began having pain in both ankles and his left knee during service and that it had continued since service. The Board notes that the Veteran is competent to report the onset of lay observable symptoms such as pain. He also reported that his right knee injury caused him to alter his gait, and that this affected his ankles and left knee. In addition, January 1981 service treatment records show that the Veteran injured his left ankle playing basketball and had a slight limp. The provider diagnosed a strained ankle. At the March 2012 hearing, the Veteran reported that he began to favor his left ankle more after he injured his right knee. As the record contains diagnoses for the bilateral ankles and left knee and indicates that they may be due to service or that they may have been caused or aggravated by the Veteran’s right knee disability, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the Present. 2. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current right knee disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right knee disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 3. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current right and left ankle and left knee disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right ankle, left ankle or left knee disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include whether it was caused or aggravated by the Veteran’s right knee disability. The opinion regarding the left ankle should also address the Veteran’s January 1981 left ankle injury. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.