Citation Nr: 21039869 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-05 389 DATE: July 1, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a lung disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus, as secondary to hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right knee disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a lung disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lung disability are not 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 had active duty service from September 1957 to June 1960. In May 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record SERVICE CONNECTION The Veteran seeks service connection for a right knee disability and a lung disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Entitlement to service connection for a right knee disability The Veteran asserts that he has a right knee disability that is related to an in-service injury while playing volleyball. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of right knee pain, and evidence shows that he injured his right knee during service in March 1960 playing volleyball, the preponderance of the evidence weighs against finding that the a currently diagnosed right knee disability began during service or is otherwise related to an in-service injury, event, or disease. The record reflects that the Veteran was not diagnosed with right knee pain until the March 2016 VA examination, nearly 56 years after his separation from service, and the Veteran reported experiencing that his right knee would catch or fall asleep at times for only the previous 10 years. After the examination and review of the record, the March 2016 VA examiner opined that the Veteran's right knee pain was less likely than not incurred in service or was due to his in-service volleyball injury. The rationale was that the Veteran's service treatment records reflected a contusion injury to the right popliteal space, that was self-limited and had resolved. The examiner opined that the mild degenerative changes in his right knee did not result from the contusion injury during service, but rather was age related degenerative joint disease. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Entitlement to service connection for a lung disability The Veteran asserts that he a lung disability that is related to in-service mononucleosis or an in-service upper respiratory infection. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of chronic obstructive pulmonary disease (COPD), and evidence shows that he was treated in service for the common cold in December 1957 and for mononucleosis in August 1959, the preponderance of the evidence weighs against finding that the currently diagnosed COPD began during service or is otherwise related to an in-service injury, event, or disease. VA records reflect that the Veteran was not diagnosed with COPD until 2003, 43 years after separation from service. After reviewing the record, the May 2016 VA examiner opined that the Veteran's COPD was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was that the Veteran's service treatment records show that the Veteran was treated for mononucleosis and the occasional common cold while on active duty, however, infectious mononucleosis and upper respiratory infection (the common cold) had no causal relationship to COPD diagnosed more than 50 years later. The examiner noted that the most important risk factor for COPD is cigarette smoking and the amount and duration of smoking contributed to the disease severity. The Veteran testified that he did smoke cigarettes during service, but had stopped after his separation. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. The Board has considered the Veteran's assertions that his current right knee and lung disabilities are related to service. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of the knee and lung disabilities at issue here are outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board gives more probative weight to the May 2016 VA examiner's opinion. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The claim must be remanded because the April 2016 VA opinion is inadequate. The VA examiner offered a negative nexus opinion based on an Institute of Medicine (IOM) study to refute the theory of delayed onset hearing loss. The IOM report includes inconsistencies. McCray v. Wilkie, 31 Vet. App. 243 (2019). The April 2016 VA examiner did not discuss the IOM study beyond the reference to it; there was no discussion of the qualifying findings within that report. Accordingly, a new opinion is necessary. Should the examiner rely to any extent upon the IOM study, noted above, the examiner must (a) identify the medical text's qualifying or contradictory aspects ("There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure ); and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to in-service noise exposure. The examiner may discuss this Veteran's documented complaints and clinical history in support thereof, but must not reject medical history unless otherwise incongruous with the record and explaining why any history is rejected. Entitlement to service connection for tinnitus, as secondary to hearing loss is remanded. The claim is remanded as intertwined with the hearing loss claim. The April 2016 VA examiner concluded the tinnitus is a symptom of the Veteran's hearing loss. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not related to conceded in-service noise exposure. The examiner should explain why or why not. Should the examiner rely to any extent upon the IOM study, noted above, the examiner must (a) identify the medical text's qualifying or contradictory aspects (i.e. "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure"); and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to conceded in-service noise exposure. The examiner may discuss this Veteran's documented complaints and clinical history in support thereof, but must not reject medical history unless otherwise incongruous with the record and explaining why any history is rejected. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why this is so. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue service connection for tinnitus, to include as secondary to hearing loss. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.