Citation Nr: 21022167 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-22 067 DATE: April 14, 2021 ORDER Service connection for right knee condition is granted. Service connection for gout is granted. Service connection for right ear hearing loss is granted REMANDED Service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s right knee condition had its onset in service. 2. The Veteran’s gout condition had its onset in service. 3. The Veteran’s right ear hearing loss had its onset in service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for gout have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1974 to May 1976. The Veteran also had active service in the Army Reserves and National Guard, to include periods of active duty for training (ACDUTRA). In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Right knee The Veteran reports that service connection for right knee condition is warranted since is related to service. See BVA hearing transcript (December 2019). In support, his service treatment records show that he injured his right knee in service. See STR (February 1976). The Veteran was diagnosed with right knee strain. See VA medical examination (February 2017). Thus, the Veteran has a current condition, thus establishing the first element for service connection. Additionally, he continued his medical treatment for his knees with physical therapy, injections, surgery and medications. See Non-VA medical record (April 2002, August 2011). Indeed, the record shows that the Veteran is suffering from a right knee condition and functional impairment. The Board acknowledges that the RO concluded that service connection was not warranted for this condition because it was less likely related to service. However, the Veteran and spouse provided sworn testimony and lay statements explaining that his condition had its onset in service and has had problems and treatment thereafter. See BVA hearing transcript (December 2019) and see also buddy statement, L.V. (March 2014). Further, his service treatment records show pain and medical treatment in his right knee. See STR (February 1976). The Board finds that the medical and lay evidence linking the Veteran’s right knee condition to service is probative, competent and credible. Additionally, the Veteran has various outpatient treatment records of his right knee disability and treatment, including a private physician that stated that the Veteran has a history of bilateral knees problems since service and the injury to his left knee has made his right knee worse. See Private physician letter, J.R. (October 2019). Further, the Board also finds that the competent and credible Veteran’s and spouse statements show that his knee problems began during service and have been recurrent since that time. The Veteran is competent to report his knee symptoms that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. The Board finds that the medical and lay evidence, including the Veteran’s and spouse sworn testimony and statements, shows that the Veteran’s right knee disability had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s right knee disability had its onset during his period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303(a). 2. Gout The Veteran and spouse reports that service connection for gout condition is warranted since is related to service. See BVA hearing transcript (December 2019). In support, his service treatment records show that he was diagnosed and treated in service for a feet injury, including gout. See STR (March 1986 and April 1991). In this case, the term “active military, naval, or air service" includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty. This term also includes any period of inactive duty for training (INACDUTRA) during which the individual was disabled from an injury incurred or aggravated in line of duty. Thus, the Veteran may be service connected for a disorder if it is shown that this disorder had its onset during a period of ACDUTRA or is related to an injury incurred during a period of ACDUTRA or INACDUTRA. The Veteran's March 1986 military personnel record shows that the Veteran was on active duty for training on March 1986. Moreover, his medical records show a hospital visit for his feet due to an injury at the same time he was on active duty training. Subsequently, he was diagnosed with gout and continued to receive medical treatment for his condition. Thus, the evidence confirms that the injury occurred during ACDUTRA. At a December 2019 Board hearing, the Veteran's spouse reported that she had known the Veteran for since service. She indicated that she remembered the Veteran was diagnosed with gout and was disqualified of further training due to his condition. See BVA hearing transcript (December 2019). The Veteran is diagnosed with gout in his feet. The Board finds the Veteran's reports of gout symptoms during service and since service to be credible. See Jandreau, 492 F.3d at 1372 (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board also finds that the reports from the Veteran's spouse, that she remembered that the Veteran was diagnosed with gout during service, to be credible. The Board finds that the medical and lay evidence, including the Veteran’s and spouse sworn testimony and statements, shows that the Veteran’s gout disability had its onset in service and have been recurrent since that time. The Veteran is competent to report his gout symptoms that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. Resolving any doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current gout condition commenced during his period of service. In light of the evidence, the Board cannot conclude that the preponderance of the evidence is against granting service connection for gout. Therefore, service connection for gout, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. 3. Right ear hearing loss The Veteran reports that he is entitled to service connection for bilateral hearing loss. In support, the Veteran reports diminished hearing during since service, which he attributes to hazardous noise exposure during service. See BVA Hearing transcript (December 2019). VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran is currently diagnosed with hearing loss in his right ear, which meets the criteria for VA hearing loss as a disability. See VA medical examination (February 2017) and see also 38 C.F.R. § 3.385. The Board notes that at his November 2019 Board hearing, the Veteran reported that he was exposed to loud and hazardous noise in service. See BVA hearing transcript (December 2019). Moreover, he noticed a decline in his hearing over the years. The Board acknowledges that on February 2017 a VA examiner provided a negative nexus, reasoning that the etiology of the Veteran’s hearing loss was not related to service. See VA medical examination (February 2017). However, the medical and lay evidence, shows that the Veteran was exposed to acoustic trauma in service and hearing loss has been recurrent ever since. Thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). Further, the Veteran and spouse credibly and competently provided sworn testimony that his condition started in service and has been recurrent ever since. The Veteran is competent to report hearing loss symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the medical and lay evidence, including the Veteran's and spouse sworn testimony, shows that the Veteran's right ear hearing loss condition had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right ear hearing loss had its onset during his military service. As such, service connection is warranted. See 38 C.F.R. § 3.303(b). REASONS FOR REMAND 1. Left ear hearing loss is remanded. The Veteran reported at his December 2019 BVA hearing that his hearing loss has worsened since the last VA examination on February 2017. The Veteran reports suffering from left ear hearing loss and reports that the condition has worsened since the last VA examination. As such, the Veteran must be afforded another VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997; see also VAOPGCPREC 11-95 (April 7, 1995). Therefore, the Board finds that a medical evaluation is necessary to determine the Veteran’s current severity and impact of his left ear hearing loss condition. The matter is REMANDED for the following action: 1. Obtain complete VA and Non-VA treatment records of the Veteran’s left ear hearing loss. 2. Schedule a VA examination for an audiogram (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner to determine if the Veteran has left ear hearing loss for VA purposes. If a condition is present, the examiner must opine as to whether it is at least as likely as not that the Veteran’s left ear hearing loss is related to or had its onset during service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.