Citation Nr: 21029196 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-25 832 DATE: May 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted Entitlement to service connection for a left knee strain is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is causally related to in-service noise exposure 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is causally related to in-service noise exposure. 3. Resolving reasonable doubt in the Veteran's favor, his left knee strain manifested in service and is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a left knee strain have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to October 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions from July 2017 and October 2017 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2021. Service connection Service connection may be granted for a disability from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all the evidence including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Hearing loss and tinnitus are among the chronic disabilities for which a presumption of service connection is warranted if shown to a compensable degree withing a year following separation from service. 38 C.F.R. §§ 3.307, 3.309(a). 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, the benefit of the doubt is afforded to the claimant. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 (Fed. Cir. 2007). 1. Entitlement to service connection for bilateral hearing loss The Veteran is seeking service connection for bilateral hearing loss. He asserts that he was exposed to loud noises when he worked on a flight line as an aircraft crew chief. The question for the Board is whether the Veteran has an ear disability that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 dB or greater: when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992) To start, the record reveals that the Veteran served as an aircraft mechanic and a crew chief for KC-135 aircraft. Additionally, the Veteran's service treatment records contain multiple hearing tests. In November 1976, the Veteran's hearing test shows the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 X 0 LEFT 10 10 15 X 0 A hearing test from 1980 produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 5 5 LEFT 15 20 20 20 10 A hearing test from 1981 produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 15 5 LEFT 15 15 15 15 10 In June 2017 the Veteran was afforded a VA examination and an addendum opinion was obtained in September 2017. The June 2017 examination produced the following values: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 25 45 LEFT 35 35 35 40 50 The pure tone threshold average for the Veteran's right ear was 27.5 for the right ear and 40 in his left ear. The Veteran's Maryland CNC speech discrimination score was 98 percent in his right ear and 76 percent in his left ear. The examiner noted that the Veteran has bilateral sensorineural hearing loss. The examiner opined that she was unable to provide an opinion due to no entrance or separation hearing evaluation. The VA then obtained the Veteran's active duty medical records and requested an addendum opinion. The examiner reviewed the Veteran's entrance and separation hearing evaluations. The examiner noted the hearing tests results from the Veteran's time on active duty. The examiner ultimately opined that the Veteran's hearing loss was less likely than not a result of military noise exposure. In the March 2021 hearing, the Veteran testified that tinnitus woke him up at night, especially in his left ear. The Veteran went on to state he has a 500-watt surround sound system that he must turn up in order to hear the sound. He was told by his wife and daughter that he is going deaf. The Veteran also stated that he experienced ringing in his ears during service and that the ringing was common. Here, the Board acknowledges VA examiner's finding of noise exposure in service but also that the Veteran's hearing loss is not linked to noise exposure during military service. The examiner, however, did not provide any rationale regarding the threshold shifts seen on the Veteran's hearing tests on active duty, particularly 1976 and 1980. The examination is inadequate for adjudicating the claim. However, when all the evidence is taken together as a whole, the Board concedes in-service noise exposure, and finds the evidence to be in relative equipoise. Thus, resolving all doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is related to his active duty service and noise exposure working around aircraft. The Board notes that tinnitus is a disease that is capable of lay observation; the Veteran is therefore competent to testify to its onset and present existence. Service treatment records are silent for specific complaints of tinnitus symptoms. However, as mentioned above, the Veteran has documented hearing threshold shifts. In addition, the Veteran's military occupational specialty as an aircraft mechanic was noted by the examiner in the June 2017 examination. The Board in no way calls into question that the Veteran served for years in the Air Force in and around loud noise, to include from jet engines, as he has so described. In the June 2017 VA hearing loss examination, the examiner noted that the Veteran had recurrent tinnitus. The examiner also reported the Veteran's onset of tinnitus during his active duty service. However, in the September 2017 addendum opinion, the examiner opined that the Veteran's tinnitus was less likely than not a result of military noise exposure as it was not claimed while enlisted. The Veteran has competently identified an in-service onset of tinnitus, subsequent to hazardous noise exposure. The Board finds no evidence in the record to question the credibility of the Veteran's testimony. Accordingly, in light of the deficiencies in the June 2017 VA examination and September 2017 addendum opinion, the Board finds that the Veteran's competent testimony is at least as probative as the examiner's negative nexus opinion. As the evidence is in equipoise, the Board must grant the claim of entitlement to service connection for tinnitus based on in-service onset. See 38 U.S.C. § 5107. 3. Entitlement to service connection for a left knee strain The Veteran contends that his left knee disability is a result from an injury from his active duty service. His service records reveal an in-service injury. In September 1980, he was seen during a physical therapy appointment. He was noted as having possible patella chondromalacia. In August 1980, he twisted his left knee. Imaging revealed a patellar tendon strain. In August 1981, he was noted as having soft tissue swelling of the left knee and required a cast. The Veteran was afforded a VA knee examination in June 2017. He was noted as having a diagnosis of a left knee strain. The examiner reviewed the Veteran's file and examined the Veteran in person. The Veteran reported that he continued to have left knee pain after service but did not see a doctor. The Veteran stated he was initially doing desk work, so his pain was manageable. The examiner ultimately opined that the Veteran's left knee was less likely than not caused by or a result of military service. The examiner found an in-service injury but did not find evidence of continuity or chronicity of the condition. The examiner also stated in the rationale that the Veteran's present knee pain likely may be due to normal wear and tear with age, and he has engaged in mechanical work in heating/cooling business. The Veteran was also afforded a VA examination for his lower back in June 2017. In the lower back examination, the examiner reported that the Veteran did not have medical insurance to see a doctor for his lower back. The examiner also reported that the Veteran had issues lifting objects and strenuous activity. The Veteran attributed much of the back issues to his job while in the military. The Veteran stated that he had to deal with heavy equipment and had to push and pull heavy equipment. The Veteran was ultimately granted service connection for a lower back disability. The Veteran testified in March 2021 that he twisted his knee while on active duty and required a cast. He also testified that his knee currently hurts with weather changes. The Veteran stated that his knee has been causing pain for years and has been getting progressively worse. The Board finds that the Veteran's competent testimony is at least as probative as the examiner's negative nexus opinion. The examiner essentially based the opinion on the lack of chronic symptomatology since the Veteran separated from service. Thus, the Board finds the June 2017 opinion inadequate. There is a clear in-service injury and current diagnosis. The same VA examiner conducted the June 2017 lower back and knee examinations. The examiner elicited information regarding the Veteran's ability to see a doctor while not having insurance and detailed the in-service demands the Veteran had to deal with daily. The Veteran also testified regarding his symptoms and his experience with left knee pain and the length of time he has dealt with the disability. Thus, in light of the Veteran's confirmed in-service incurrence, the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for a left knee strain. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for a left knee strain is granted. See 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.