Citation Nr: 21041732 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-60 472 DATE: July 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for a left knee disorder to include arthritis is remanded. Entitlement to service connection for right knee disorder to include arthritis is remanded. FINDING OF FACT The Veteran's tinnitus is related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1971 to March 1973. He is a Veteran of the Vietnam Era and received the Vietnam Service Medal among other commendations. This matter comes to the Board of Veterans' Appeals (Board) on an appeal from November 2013, February 2016, and November 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). In May 2021, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303 (b). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309 (a). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303 (b) is available for sensorineural hearing loss and tinnitus as organic diseases of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303 (b) is also available for arthritis. For the purposes of applying the laws administered by VA, a disability due to impaired hearing may be considered if the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for tinnitus The Veteran has asserted that his tinnitus is related to hazardous noise exposure during service. The Veteran's military occupational specialty (MOS) during service was military police which has a moderate probability of hazardous noise exposure. Tinnitus is a chronic disease afforded a relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Tinnitus is a disorder uniquely discernable by the senses. The Board notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). Review of the Veteran's service treatment records indicate no complaints or treatment of tinnitus. The Veteran was afforded a VA examination for tinnitus in December 2015. The examiner found that it is less likely than not that the Veteran's tinnitus is related to military service. The examiner's rationale was that the Veteran's entrance and separation exams revealed normal hearing acuity bilaterally. No standard threshold shifts were demonstrated at discharge upon comparison of the entrance and separation exams. The examiner opined that because the objective results refute any evidence of noise injury, it is less likely as not that the claim of tinnitus is the result of military noise. The Board finds that this examination and opinion are entitled to low probative value as the examiner did not offer a sufficient rationale for his opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner noted but failed to address the Veteran's MOS of military police, which as noted has a moderate probability of hazardous noise exposure. Further, it is unclear whether the Veteran made any statements regarding tinnitus as the examiner did not record any statements made by the Veteran. The examiner also did not address noise exposure after service or any other potential cause of tinnitus. In a private hearing examination in October 2017, the Veteran reported a history of constant ringing tinnitus beginning after military service with mild frequent vertigo. At the May 2021 hearing, the Veteran testified that he currently has ringing in his ears, not all of the time but quite a bit. He stated that it feels like if you bump your head and get a ringing. He stated that he may have experienced ringing during service but he would have ignored it because he didn't want to be "kicked out." He noticed it more after service and it became even more pronounced later on. He stated that "[Y]ou sort of get used to it." He stated that he thought it was normal until he was examined for hearing loss and he reported the ringing and they told him it was not normal to have ringing in your ears. He stated that after service he worked in a laboratory and drove a truck for approximately 30 years. His post-service jobs did not involve exposure to loud noise like he had during service. The evidence establishes a diagnosis of tinnitus and an in-service incurrence based on the Veteran's MOS and his statements. The Veteran's statements regarding in-service noise exposure are consistent with the circumstances of the Veteran's service and his personnel records, and are sufficient to link such disability to service. The Board finds that the evidence is at least in relative equipoise and it is at least as likely as not that the Veteran's tinnitus is proximately caused by in-service hazardous noise exposure. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran has asserted that his hearing loss was caused by hazardous noise exposure during service. The Veteran was afforded a VA examination for hearing loss in December 2015. Audiological testing results indicated: HERTZ 1000 2000 3000 4000 Average RIGHT 25 20 25 25 24 LEFT 15 25 40 30 28 The Veteran's speech discrimination score (Maryland CNC word list) was 96% right ear and 96% left ear. The examiner noted the Veteran's MOS of military policeman. The examiner opined that it is less likely than not that the Veteran's hearing loss is related to noise exposure during service. The examiner's rationale was that the Veteran's enlistment examination in March 1971 revealed normal hearing acuity across test frequencies. His separation exam dated In January 1973 also revealed normal hearing acuity across test frequencies. No standard threshold shift was demonstrated upon comparison of the enlistment and separation exams. Because the Veteran's hearing acuity remained essentially unchanged and within normal limits at discharge, the examiner opined that it is less likely as not that the Veteran's hearing loss is the result of his military service. At a private hearing loss examination in October 2017, the Veteran was diagnosed with mild to moderately severe bilateral hearing loss. The clinician stated that it is possible that this military service caused the Veteran's hearing loss, however she stated that she was unable to determine the cause of his hearing loss. At the May 2021 hearing, the Veteran testified that he did not experience hearing loss prior to service and that his MOS was military police. He stated he had small arms training during service and M16 training on the firing range. Every day they went to the rifle range. He stated that during service he often had to ask people to repeat something they said and sometimes other servicemembers would say he was ignoring them. At that time he was 20 or 21 years old and didn't realize he had a problem. The Veteran testified that after service, he drove a truck for a long time and that he also worked in a laboratory. His post-service jobs did not involve exposure to loud noise like he had during service. After service, his wife would ask him "You didn't hear me" or ask why the volume on the TV was so loud. She would tell the kids to talk louder and look at him when talking. He stated that is when he noticed that he was having a hearing problem. He stated that he went to a VA doctor first and then to a private doctor. He stated that the person who gave him the hearing test at the VA got upset with him because he could not recognize sounds. So he went to a private hearing specialist. He stated that he tries to watch a person's lips to see what they are saying and stated, "I'm not totally deaf." But he has difficulty recognizing the sound. "I know you're saying something. But I have to--you know, to kind of look at your lips, to see what you're, you're saying." The Veteran stated that he did not have hearing aids because he couldn't afford them because he doesn't have any insurance due to being off of work for a long time because of knee replacement surgery. He stated his hearing loss has worsened since his last examination. The Board notes that the audiometric testing during the 2015 VA examination for the Veteran's right ear does not met the criteria for establishing hearing loss that is capable of being service connected. The Veteran's left ear audiometric testing does currently meet the criteria to be eligible for service connection. However, the Board finds that remand is necessary as the prior examination and opinion are inadequate. Entitlement to service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Although hearing loss was not shown in-service, acoustic trauma or military noise exposure may constitute injury of the ear. The examiner noted but failed to address the Veteran's military occupational specialty (MOS) of military police, which has a moderate probability of exposure to hazardous noise. The examiner did not address noise exposure after service or any other potential cause of tinnitus. He relied almost exclusively on the lack of in-service evidence of hearing loss. Even if disabling loss is not demonstrated at the time of separation, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and a medically sound basis sufficient to attribute that disability to service (as opposed to after-service causes) may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner did not document any lay statements made by the Veteran regarding hearing loss during the examination. 38 C.F.R. § 4.2. It would be highly unusual if the Veteran said nothing at all and any statements he did make must be recorded. The examiner also failed to consider delayed onset hearing loss. The Director of the VA Compensation and Pension Service observed in Training Letter 10-02 that delayed-onset hearing loss and tinnitus must be considered in the service-connection analysis. The Board notes that another examination is also necessary as the Veteran has claimed that his hearing has worsened since the last examination and the most current audiological testing is from 2015. In sum, remand is necessary for a contemporaneous and adequate examination to determine the nature and etiology of the Veteran's hearing loss. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for a left knee disorder to include arthritis is remanded. 3. Entitlement to service connection for right knee disorder to include arthritis is remanded. The Veteran contends that his left and right knee disorders are related to service. He asserts that he injured his left knee jumping off of a truck during service and that his right knee disorder is also related to his service duties and/or is the result of favoring his left knee. A November 2013 rating decision previously denied service connection; however, additional new and material evidence was received within one year of the date of that decision so it did not become final. The evidence consisted of medical records showing diagnosis and treatment of arthritis in the bilateral knees. Thereafter, the issues were again denied in November 2018. The Veteran was diagnosed with osteoarthritis by private medical care providers in March 2009. In January 2011, he underwent arthroscopy on his left knee; postoperative diagnoses were torn left medial and lateral meniscus, loose body, and ostearthritis, left knee with hypertrophic synovitis. Right knee arthritis was also noted in January 2011. In January 2011, the Veteran began receiving Social Security Administration disability benefits in part due to his left knee disability. He underwent total left knee replacement surgery in December 2014. At the May 2021 hearing, the Veteran testified that his left knee and right knee cause the same problems. As to his left knee, he stated that he doesn't have the pain he used to have but he doesn't have the range of motion and that "I kind of drag it, a little bit." He stated that the right knee is "way better than the left one." He stated that the doctor told him that because the left knee had gone on for so long, it was limited what could be done. For the right knee, the doctor said that because he was favoring it, that caused the right knee to wear out. As to what happened during service that caused his left knee disorder, the Veteran stated that he was out on patrol on a bomb site and no one was supposed to be in that bomb site except military police and he thought he saw somebody. He stopped his jeep and jumped out and hurt his knee. After a period of time his left knee started bothering him. He didn't report it during service and would rest his knee when he wasn't working. After service he went to a private doctor who told him his knee had a lot of fluid on it that needed to be drawn off. He stated that he had to stay in the hospital for two or three days because his knee locked due to excess fluid. He stated that they would constantly draw fluid from his knee and it just got worse. Then he started getting injections in his knee. He stated that then he had the "scope deal" and that didn't work so the doctor said he was going to have to have a knee replacement. As to the cause of his knee disorder, he stated that the doctor asked if he played sports and he stated that he never played any type of sport in his life. The doctor said it was a "long time injury" and not something that he did recently. He stated that he just tolerated it until he had it replaced. The Veteran stated that his left knee disorder caused his right knee disorder. The Veteran testified that his right knee is better than the left knee but he doesn't have the ranger of motion that he's supposed to have in either knee. He can't bend over to tie his shoes so he has to wear shoes with Velcro closures. He stated that he uses a cane to balance and he can't walk on anything that's not level or he will fall. He stated that he has fallen several times. He stated that he was unable to get some of his medical records because they are no longer available. He stated that he started to have right knee symptoms within ten years of discharge that progressively worsened. He stated, "It got extremely worse." He stated that the more he walked, the worse it got. The Veteran stated that the VA orthopedic doctor told him that it looks like one of his legs is longer than the other one. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As to the first element, VA and private medical records show evidence of a current disability. As to the second element, considering the circumstances of the Veteran's service, his lay statements and testimony that he injured his knee during service are sufficient. As to the third element, there is an indication that the Veteran's left knee disorder and right knee disorder are related to service and that his right knee disorder is related to his left knee disorder. Finally, as there is no VA examination of record, there is insufficient evidence to make a decision on the claim. Accordingly, the Board finds that the Veteran's claims for a left knee disorder to include arthritis and right knee disorder to include arthritis meet the McLendon criteria and his claim must be remanded for a VA examination and etiological opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination. The examiner should provide the following opinions: (a.) Whether the Veteran has a current right and left ear hearing disability. (b.) Whether it is at least as likely as not (50 percent or better probability) that any current hearing loss disorder was incurred during service. The examiner must address the Veteran's MOS as military policeman and moderate probability of hazardous noise exposure. The examiner must also address the Veteran's lay statements and testimony. 2. Provide an examination to determine the nature and etiology of the Veteran's left knee disorder to include arthritis and right knee disorder to include arthritis. The examiner should provide the following opinions: (a.) Whether it is at least as likely as not that the Veteran's left knee disorder had its onset during service or is otherwise related to service. (b.) Whether it is at least as likely as not that the Veteran's right knee disorder had its onset during service or is otherwise related to service. (c.) Whether it is at least as likely as not that the Veteran's right knee disorder is secondary to a service-connected disability. The examiner must consider the Veteran's lay statements and testimony, including reports of injuring his left knee during service and the circumstances of his service as a military policeman. All opinions must provide a complete rationale. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.