Citation Nr: 21031005 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-48 139 DATE: May 20, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a right knee disability is remanded. FINDING OF FACT The Veteran's tinnitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. § § 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1976 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2020. Service connection for tinnitus The Veteran asserts that his tinnitus is the result of in-service noise exposure and has been recurrent since service. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an 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 current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, like tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. § § 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 28802245 v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board finds that service connection for tinnitus is warranted. The Veteran has reported ongoing, recurrent tinnitus during the appeal period, and that his tinnitus began while he was a radio mechanic and equipment operator in the Army; he worked on and was in great proximity to running generators and was exposed to a great deal of noise. See May 2014 Form 9. While in service, the Veteran stated he had one episode of experiencing ringing in his ears but was not treated after seeking medical attention; he additionally testified that he began experiencing intermittent tinnitus 5-6 months after separation from service. See May 2020 Hearing Transcript. The Veteran also asserted at his hearing that over the last eight years, the tinnitus has become more constant. Id. Even though his service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports concerning his noise exposure and the onset of his tinnitus in service, and the Board finds his reports to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Fountain. The Board acknowledges a negative nexus opinion of record; however, because the Board finds the Veteran's reports that his tinnitus started in service and has been recurrent since service credible, service connection is warranted. Fountain; see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994). REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss. As a radio mechanic and communications equipment operator in the Army, the Veteran contends that he was exposed to loud noise from being in close proximity to running generators. The Board finds credible the Veteran's report of in-service acoustic trauma. At his May 2020 Board hearing, the Veteran testified that he wore ear protection muffs while working on the generators, but the significant noise produced by the generators was not reduced much from using the earmuffs. He stated that he has trouble hearing, and his constant tinnitus interfered with his ability to understand the instructions from the hearing test in his last VA examination. See May 2020 Hearing Transcript. VA audiological examinations completed in June 2014 and August 2014 indicated Veteran had hearing loss for VA purposes, but the reports were inadequate for rating purposes due to inconsistent responses during audiometric pure-tone testing. In the March 2015 VA audio examination, the examination findings showed that Veteran did not meet the criteria for hearing loss for VA purposes; further, the VA examiner opined that as hearing thresholds were within normal limits at time of military separation and medical records did not indicate evidence of chronicity or continuity of care regarding hearing loss, coupled with history of civilian occupational noise exposure secondary to employment as an auto mechanic and machinist, the Veteran's hearing loss was not caused by or a result of an event in military service. As Veteran has asserted that his hearing loss has increased in severity since his last VA examination in March 2015 and his tinnitus may have interfered with his ability to understand the instructions from the prior hearing loss examination, the Board finds that an updated VA examination is needed for Veteran's claimed bilateral hearing loss, as the March 2015 VA examination may no longer be reflective of the Veteran's current level or nature of his hearing loss disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Service connection for a right knee disability is remanded. A remand of the Veteran's claim for service connection for a right knee disability is necessary to determine whether the Veteran has a current diagnosis of a right knee condition, as no current diagnosis has been determined. The Veteran testified at his May 2020 Board hearing that his right knee disability occurred in 1979 while he was stationed in Germany; he was working as a communications specialist, climbed on top of a generator and subsequently slipped and fell off, hitting his right knee on the side of the generator. The Veteran stated he sought medical treatment after, he had his knee iced while he recalled experiencing a lot of right knee pain and spent four hours with the medic receiving treatment. Afterwards, he spent approximately a month and a half resting his knee before going back to his regular duties in service. Since the incident, he reports that he has dealt with on and off knee pain, takes pain medication to alleviate knee pain and has taken steroid injections in the past. See May 2020 Hearing Transcript. Medical treatment records from November 2013 show findings of minimal osteoarthritis within the medial compartment, with no radiographic findings of rheumatoid involvement of the knee. However, to date, the Veteran has not been afforded a VA examination for his right knee condition. Following the hearing, the Veteran submitted a January 2021 private independent medical opinion in which the physician attributed the Veteran's right knee disability to service. As noted, the Veteran reports having recurrent right knee problems since service and at the hearing he indicated that he would submit a statement from his sister corroborating this account; the Veteran testified that he told his sister of the injury while he was on active duty and that she could provide a statement corroborating his account. To date, the Veteran has not done so. As the Veteran has not been afforded an examination to determine the onset and etiology of the Veteran's right knee disability, the Board finds that an examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, a remand is necessary to both clarify the Veteran's current diagnosis and obtain a nexus opinion. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his right knee and bilateral hearing loss conditions. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals, and in particular, his sister, who may have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service right knee and bilateral hearing loss problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature, onset and etiology of Veteran's right knee condition and bilateral hearing loss disability. The examiners are asked to review the pertinent evidence, including the Veteran's lay evidence as to the onset of the right knee and hearing loss symptoms and undertake any indicated studies. For any functional impairment of the right knee found to be present, the examiner should opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must acknowledge and discuss the January 2021 private independent medical opinion submitted by the Veteran. The examiner must also acknowledge and discuss the lay evidence regarding the onset and recurrence of the Veteran's right knee and hearing loss problems. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.