Citation Nr: 21041387 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-11 177 DATE: July 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right knee disability is granted. FINDINGS OF FACT 1. The evidence of record favors a finding that the Veteran's bilateral tinnitus began during active service. 2. The Veteran's June 1985 examination upon entrance into service did not note the presence of a preexisting right knee disability. 3. The evidence of record favors a finding that the Veteran's right knee disability is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The Veteran is presumed sound upon her entrance into service. 38 U.S.C. § 1111. 3. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to July 1989. In April 2021, she testified at a videoconference hearing before the undersigned; a transcript is of record. 1. Entitlement to service connection for bilateral tinnitus. The Veteran contends that she has a current tinnitus disability that began after exposure to loud noise while on active duty, including exposure to small arms fire, as well as helicopters and military transport 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 complaints of tinnitus symptoms, as is the Veteran's examination on separation from service. The Veteran has indicated that her tinnitus began in-service and, at the time, she was unsure what the ringing noise was called. See April 2021 Hearing Transcript. The Board finds that the description of the Veteran's in-service noise exposure is consistent with the types and circumstances of her military service. 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service). As such, the Board finds that the Veteran's assertions regarding her in-service noise exposure and the onset, nature, and progression of her tinnitus are considered competent and credible lay evidence of such. Tinnitus is a chronic disease for purposes of 38 C.F.R. § 3.309. See Fountain v. McDonald, 27 Vet. App. 258 (2015). It is also noted that the provisions of 38 C.F.R. § 3.303(b) are applicable in this case, as the Veteran has competently and credibly asserted that she had tinnitus, a chronic disease, in service and at present. See 38 C.F.R. § 3.303(b) (If a chronic disease is present during service and manifests at any later date, service connection is warranted absent evidence that the disease is clearly attributable to intercurrent causes). Given the Veteran's in-service noise exposure and reports that she first experienced tinnitus in service, without any indication of any intercurrent cause, the Board finds the probative, competent evidence demonstrates that tinnitus had its onset during active duty. Therefore, service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a right knee disability. The Veteran has asserted that her right knee disability was caused by or aggravated by her active service. See April 2021 Hearing Transcript. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has a current diagnosis of chronic right knee pain and a right knee sprain. See December 2016 Dr J.C-M. opinion, January 2018 VA examination. During service, the Veteran was seen for complaints of right knee pain and popping. See August 1985 Health Record, May 1986 Health Record. In a June 1990 Report of Medical History, the Veteran indicated that she had experienced swollen joints and a trick or locked right knee. Thus, the question becomes whether the current disability is related to service. During the April 2021 hearing, the Veteran indicated that upon entrance into active duty in 1985 she notified the enlistment examiner that she had experienced "some issues" with her right knee prior to service and that she was given a clean bill of health upon entry. In the Veteran's June 1985 Report of Medical History at enlistment, the examiner noted that the Veteran's knee had bothered her "last year" for six months and that she saw a "specialist" who advised muscle strengthening. The examiner noted that the issue was "apparently related to spontaneous dislocation." The Veteran indicated that she had been exercising more and hadn't experienced symptoms in five months. However, on the Veteran's June 1985 Report of Medical Examination for enlistment purposes, the examiner noted that the Veteran had normal knee joints free of crepitus, swelling, deformity, tenderness, or laxity with full range of motion and no evidence of dislocation. No medical defects were noted. Since the Veteran's June 1985 Report of Medical Examination for enlistment purposes does not note any knee disabilities, the Veteran must be presumed sound. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. As the Veteran must be presumed sound in this case, the burden then shifts to the government to rebut the presumption of soundness. The presumption of soundness may be rebutted only by clear and unmistakable evidence that the Veteran's disability both (1) pre-existed her service and (2) was not aggravated by her service. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) The evidence of record contains a December 2016 private medical opinion, in which, Dr. J.C-M opined that the Veteran's chronic knee pain most likely resulted from repetitive injury during military service. Lay statements from the Veteran's mother, husband, and friend indicate that the Veteran complained of increasing knee pain, limitation of activities, and difficulty walking due to right knee problems while on active duty following basic training. See September 2016 M.T. Statement; January 2017 R.P. Statement; October 2016 Statement (illegible name). In a January 2018 opinion, a VA examiner opined that the Veteran's right knee disability clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by an in-service injury, event or illness. The examiner noted that her opinion was based upon review of in-service and post-service treatment records, and she concluded that the Veteran's right knee x-rays had exhibited no change over the past 30 years. However, the examiner did note that the Veteran demonstrated a decreased range of motion, altered gait, and limitation of some activities. The Board gives little probative value to the January 2018 VA opinion because it failed to address the December 2016 private opinion supporting a relationship between the Veteran's right knee pain and service, and lay statements of record that discuss the Veteran's worsening symptoms during active service. Based upon the foregoing, the Board finds that the aggravation prong of the presumption of soundness has not been rebutted in this case, and the Veteran is presumed sound on entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Upon review of the record including the Veteran's lay statements, the December 2016 private medical opinion linking the Veteran's right knee pain to her active service, and lay statements from the Veteran's family and friend, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current right knee disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.