Citation Nr: 21015360 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-50 027 DATE: March 17, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability had its onset during active duty service. 2. The Veteran’s tinnitus had its onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 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 in the United States Navy from December 1999 to December 2003 with additional Air National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned. Initially, the Board notes that VA memorandums generated in May 2017 and July 2017 reflect that the Veteran’s Service Treatment Records (STRs) were unable to be located. In this regard, the STRs that are available are noted to have been obtained from the Veteran’s duty in the National Guard and only contain partial records from his active duty service in the United States Navy. See May 2017 STR Certification Memorandum. Notably, there is no Report of Medical History or Report of Medical Examination from the time of the Veteran’s separation from active duty. See STRs. When a Veteran’s service treatment records are unavailable and presumably destroyed, VA must employ heightened consideration of the benefit-of-the-doubt standard and rely on the competent and credible reports of medical history and symptoms. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (the duty to assist is heightened in a case such as this where service medical records are unavailable); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) ([I]n a case where the service medical records are presumed destroyed... the [Board]’s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a left knee disability is granted. The Veteran asserts that his left knee disability had its onset during his active duty service in the United States Navy and is the result of the cumulative impact of walking and sliding down ladders onto the steel decking of the ships upon which he served. See September 2020 Board Hearing Transcript at 9. The Board agrees. The Veteran has a current diagnosis of left knee meniscal tear status-post cartilage restoration surgery and element one of service connection is therefore met. See June 2017 VA examination report. Regarding element two, the Veteran has reported both that his left knee pain is the result of the cumulative impact of his service in the Navy and the cumulative impact of physical training in the National Guard. Regarding his active duty service, the Veteran testified that he experienced pain in his left knees that began during his service in the Navy and progressively worsened over time, to include his service in the National Guard. See September 2020 Board Hearing Transcript at 6-7. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the Veteran competent to report when pain in his left knee had its onset and additionally finds him credible as his reports of walking on steel decks and sliding down ladders resulting in knee pain are consistent with the circumstances of his active duty service. 38 U.S.C. § 1154(a). Accordingly, the Veteran’s lay statements are given great probative weight and element two of service connection is met. See Cuevas, supra. Regarding element three of service connection, or nexus, the only competent evidence of record is in favor of the claim. In December 2016, the Veteran submitted a statement from an orthopedic medical doctor who stated that the Veteran’s ongoing left knee condition was due to his active duty military service. The Board finds the December 2016 statement from Dr. J.A. to be consistent with the Veteran’s statements about his active duty service and is accordingly awarded probative weight. Additionally, in June 2017, a VA examiner opined that it was at least as likely as not that the Veteran’s current left knee condition was due to a meniscal tear. The VA examiner failed to discuss when the injury resulting in the meniscal tear occurred, only referring to imaging conducted in May 2013 which is not the date of injury. While the nexus statement from the June 2017 VA examiner is positive, the Board awards it very little probative weight, as it fails to discuss the Veteran’s active duty service. However, the fact remains that both medical nexus opinions of record are in favor of the claim, and there is no competent evidence to the contrary. Accordingly, when affording the Veteran the benefit of the doubt, the Board finds that a nexus has been established and service connection for a left knee disability is warranted. 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his tinnitus had its onset during his active duty service and continues to the present. See August 2017 Notice of Disagreement (NOD), September 2020 Board Hearing Transcript at 4. The Board agrees. Here, the Veteran has a current diagnosis of tinnitus that has been related to acoustic trauma that he concededly experienced during his active duty service as a Gunner’s Mate (GM) in the Navy. See June 2017 VA Audiological Examination Report, DD Form 214. Thus, all three elements of service connection are met. Notably, the June 2017 VA audiologist provided two positive nexus statements. One directly related the Veteran’s tinnitus to his service as a GM. The other statement related the Veteran’s tinnitus to his diagnosed left ear hearing loss, which the examiner also related to the Veteran’s active duty service as a GM. Inexplicably, the RO, apparently failing to understand that one can have hearing loss due to active duty that does not meet hearing loss for VA purposes (pursuant to 38 C.F.R. § 3.385), ignored this opinion and denied the claim. The July 2017 rating decision illogically found that the Veteran’s statement that he was unsure of when exactly his tinnitus had its onset was the basis of the audiologist’s opinion that tinnitus had continuously been present and was also proximately due to his active duty acoustic trauma. In fact, the audiologist’s opinion was based on his medical expertise and a review of the Veteran’s available service records. There is no evidence whatsoever that the examiner relied solely on the Veteran’s lay statement regarding a nexus to service, though the Board notes that audiologists typically must rely on a patient’s lay statements to diagnose the disorder. Tinnitus is defined as “usually subjective in type.” See Dorland’s Illustrated Medical Dictionary (30th Ed. 2003) at 1914. See also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that tinnitus is capable of lay observation). For reasons unknown to the Board, the August 2017 Statement of the Case adopted a similarly egregious interpretation of the law in denying the benefits owed to this Veteran for his many years of service. The Board emphasizes that the Veteran clarified that he recalled an onset of tinnitus during active duty in his testimony before the undersigned. See Board Hearing Transcript at 4. Thus, for the reasons set forth above, service connection for tinnitus is warranted. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his hearing loss disability is related to his active duty service as Gunner’s Mate. See August 2017 NOD, September 2019 VA Form 9. In this regard, the Veteran submitted to a VA examination in June 2017 and was diagnosed with left ear hearing loss, though not hearing loss for VA purposes, that a VA audiologist related to acoustic trauma incurred during his active duty service as a Gunner’s Mate. 38 C.F.R. § 3.385. His right ear hearing was determined to be normal by the VA audiologist. At the September 2020 Board Hearing, the Veteran testified that his hearing has worsened since the last VA examination in June 2017. See September 2020 Board Hearing Transcript at 5, March 2020 VA treatment records. VA’s duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran’s disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124); see also 38 C.F.R. § 3.327 (Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect.). Here, given the Veteran’s testimony, a new audiological examination is required on remand. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding private treatment records. 3. Then schedule the Veteran for a VA audiological examination to determine if the Veteran has bilateral hearing loss for VA purposes. Please note that no additional medical opinion is required regarding left ear hearing loss, as the June 2017 VA examiner concluded that any hearing loss the Veteran has in his left ear is due to acoustic trauma experienced in his active duty service as a Gunner’s Mate. If right ear hearing loss is diagnosed, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such is due to a conceded in-service noise injury. In addressing this question, please concede as true the Veteran’s report of a continuous decline in his hearing capabilities since his in-service noise injury, and determine whether a nexus to service is “medically plausible” based on the same. Please do not rely on the absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service, to include on separation examination, as the sole reason supporting an unfavorable opinion, as that will be considered inadequate and require further clarification. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.