Citation Nr: 21023464 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-29 469 DATE: April 20, 2021 ORDER Service connection for a left knee disability is granted. Service connection for a right knee disability, to include as secondary to a service-connected disability, is denied. Service connection for a low back disability, to include as secondary to a service-connected disability, is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s left knee disability onset in active service. 2. At no time during the current appeal period has the Veteran been diagnosed with a right knee disability. 3. At no time during the current appeal period has the Veteran been diagnosed with a low back disability. 4. Resolving reasonable doubt in the Veteran’s favor, his current tinnitus symptoms began during active service and have continued since separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a low back disability, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 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 from February 2009 to December 2013. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2014 rating decision. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. 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. 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 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disability, will be service connected. 38 C.F.R. § 3.310(b). Thus, service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. Left Knee The Veteran asserts that his left knee disability is due to an injury sustained in service. His service treatment records show that he was treated for left knee pain on multiple occasions after he injured his left knee in boot camp. In September 2014, the Veteran was afforded a VA examination. He reported that he injured his left knee during boot camp, in 2009. He stated that he continued to have pain after the injury and in 2011 he was diagnosed with a medial meniscal tear of the left knee, which required arthroscopic repair. He stated that his left knee no longer locks or pops, but he does continue to experience pain. The examiner confirmed his diagnosis of mild left knee degenerative joint disease and medial meniscal tear status post arthroscopy. However, he reported the injury was pre-existing service and based on this, she opined that the Veteran’s left knee disability was less likely than not aggravated beyond its natural progression due to military service. The examiner’s belief that the Veteran had a left knee injury prior to service appears to be based on a May 2010 visit note that reports the Veteran tore his meniscus in high school and had been experiencing left knee pain prior to enlisting. At his February 2021 hearing, the Veteran testified that this information was recorded erroneously. He stated that he injured his right knee in high school, prior to enlisting, and that he had never experienced left knee pain prior to service. He further testified that, since he injured his left knee in service, he has continued to have symptoms, such as pain, despite having surgery in 2012. The Board finds the Veteran’s competent lay testimony to be credible. A layperson is competent to report on that of which he has personal knowledge, including medical history and onset of symptoms. Layno, 6 Vet. App. at 470. As such, the Board also finds the Veteran’s competent, credible testimony to be more probative than the September 2014 VA examiner’s opinion, which was based on factual inaccuracies. The weight of the evidence supports the finding that his left knee disability onset in active service. Thus, service connection for a left knee disability is granted. Right Knee The Veteran seeks service connection for a right knee disability, to include as secondary to his now service-connected left knee disability. Congress limits entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110. Here, despite the Veteran’s assertions that service connection for a right knee disability is warranted, there is no evidence in the record reflecting a diagnosis of a right knee disability. The Veteran’s service treatment records show that he did seek treatment for right knee pain while in service. However, the records do not show a diagnosis of, or treatment for, a chronic right knee condition or its residuals. Further, the Veteran was afforded a VA examination in September 2014. The examiner reported a normal physical examination and stated that there was insufficient evidence to warrant a diagnosis. As such, a medical opinion could not be rendered as there was no disability diagnosed. Additionally, the Veteran has provided a February 2015 office note from his private physician. The physician noted that the Veteran reported he had developed right knee pain and that X-rays of both knees were normal. The physician stated that this new complaint could be related to his left knee disability. However, he did not render a diagnosis regarding the Veteran’s right knee pain. While the Board does not doubt that the Veteran is sincere in his belief that he has a right knee disability, he is not competent to provide a diagnosis of such a condition. The issue is medically complex, as it requires expert medical knowledge of the systems involved. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, or lack thereof. The Board acknowledges that pain alone, even without an underlying diagnosis, can still constitute a current disability for VA compensation purposes if it reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Veteran asserts that he experiences right knee pain when running or squatting. However, the September 2014 examiner found no evidence of functional loss of the Veteran’s right knee. Significantly, this finding was made at a time that was essentially concurrent with the private physician’s February 2015 evaluation. As such, without competent evidence of a current diagnosed disability or pain amounting to the level of functional impairment of earning capacity, service connection cannot be awarded for a right knee disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability, there can be no valid claim.”). Given the above, the preponderance of the evidence of record is against finding that the Veteran has had a right knee disability at any time during, or approximate to, the pendency of this claim. As there is no disability that can be related to service, the claim must be denied. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 223. Low Back The Veteran also seeks service connection for a low back disability, to include as secondary to his now service-connected left knee disability. Congress limits entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110. Here, despite the Veteran’s assertions that service connection for a low back disability is warranted, there is no evidence in the record reflecting a diagnosis of a low back disability. The Veteran’s service treatment records show that he did seek treatment for low back pain while in service. However, the records do not show a diagnosis of, or treatment for, a chronic low back condition or its residuals. Also, the Veteran was afforded a VA examination in September 2014. The examiner reported a normal physical examination and noted that the Veteran had previously been treated for an acute lumbar strain, but that it had resolved without sequela. The examiner further stated that there was insufficient evidence to warrant a diagnosis. As such, a medical opinion could not be rendered as there was no disability diagnosed. Additionally, the Veteran has provided a February 2015 office note from his private physician. This physician noted that the Veteran reported that he had developed “vague low back pain,” but no radicular discomfort was reported. The physician stated that this new complaint could be related to his left knee disability. However, he did not render a diagnosis regarding the Veteran’s low back pain. While the Board does not doubt that the Veteran is sincere in his belief that he has a low back disability, he is not competent to provide a diagnosis of such a condition. The issue is medically complex, as it requires expert medical knowledge of the systems involved. Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence, or lack thereof. The Board acknowledges that pain alone, even without an underlying diagnosis, can still constitute a current disability for VA compensation purposes if it reaches the level of a functional impairment of earning capacity. Saunders, 886 F.3d at 1361. The Veteran asserts that he experiences constant low back pain. However, the September 2014 examiner found no evidence of functional loss of the Veteran’s low back. Significantly, this finding was made at a time that was essentially concurrent with the private physician’s February 2015 evaluation. As such, without competent evidence of a current diagnosed disability or pain amounting to the level of functional impairment of earning capacity, service connection cannot be awarded for a low back disability. Brammer, 3 Vet. App. at 225 (“In the absence of proof of a present disability, there can be no valid claim.”). Given the above, the preponderance of the evidence of record is against finding that the Veteran had a low back disability at any time during, or approximate to, the pendency of this claim. As there is no disability that can be related to service, the claim must be denied. Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 223. Tinnitus The Veteran seeks service connection for tinnitus. Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran’s statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran contends that he has tinnitus as a result of noise exposure during his active service. At the February 2021 Board hearing, he testified that he was exposed to acoustic trauma during his active service. Specifically, he testified that, while deployed, he worked for 6 months doing combat cargo. This job entailed working 8 hours a day loading equipment onto ships. He testified that, because of the proximity to the ship’s engine, there was constant loud, rattling noise throughout his work area, and he was not provided hearing protection. Further, he testified that he was assigned to a helicopter company for 6 months, which required him to spend significant time on helicopters. He testified that his tinnitus symptoms first began during service, in late 2011. The Board finds the Veteran’s statements as to the onset of his tinnitus credible. His statements alone are sufficient to establish the criteria for service connection for tinnitus. While there is no objective evidence of tinnitus in service, the Veteran asserts that he developed tinnitus in service and has had tinnitus since then. As noted above, he is competent to give evidence about observable symptoms such as tinnitus and noise exposure. Layno, 6 Vet. App. at 465. Thus, the Board concedes the Veteran’s noise exposure during his active duty, and, as such, concludes that the in-service event element of his claim for service connection for tinnitus is met. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that his tinnitus is at least as likely as not related to his in-service noise exposure. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for tinnitus is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.