Citation Nr: 22014503 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-44 642 DATE: March 14, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. FINDINGS OF FACT 1. The Veteran has tinnitus that was incurred during active duty service. 2. The Veteran has bilateral hearing loss that was incurred years after his separation from active duty service and that did not result from in-service acoustic trauma. 3. The Veteran has left knee tricompartmental osteoarthritis, tricompartmental chondrosis, degenerative tear of the lateral meniscus, proximal tibiofibular osteoarthritis, and anterior cruciate ligament ganglion cyst that was incurred years after his separation from service and that did not result from an in-service injury, illness, or event. 4. The Veteran has right knee osteoarthritis that was incurred years after his separation from service and that did not result from an in-service injury, illness, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2021). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385 (2021). 3. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a), 3.310 (2021) 4. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a), 3.310 (2021) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from November 1974 through November 1976. The issues on appeal arise from the Veteran's February 2015 claim and rating decisions issued by the agency of original jurisdiction (AOJ) in July 2015 and December 2015. The issues were denied by the Board in a January 2019 decision; however, that denial was vacated by the Board after it was discovered that, though VA's December 2017 90-day letter had been mailed to the Veteran's attorney's law firm, such was sent to the attention of the incorrect attorney. Per the Veteran's attorney's January 2019 Motion to Vacate, the Veteran was afforded additional time to submit evidence to support his claims and his appeal was docketed for a Board hearing. Nonetheless, no additional evidence was received from the Veteran or his representative and the Veteran's attorney withdrew the Board hearing request in a February 2022 letter. Service Connection 1. Entitlement to service connection for tinnitus. The Veteran claims entitlement to service connection for tinnitus in his February 2015 claim. In his August 2015 notice of disagreement, he asserts that he incurred acoustic trauma during service while performing duties as an artilleryman. Service personnel records and the Veteran's DD Form 214 corroborate that the Veteran performed duties primarily as an artilleryman. Certainly, the nature of such duties is consistent with noise exposure during service and the Board does not dispute that the Veteran had acoustic trauma during service. The Veteran's history of in-service noise exposure is recognized by the VA examiner in a July 2015 audiological examination and the examiner also concedes that the Veteran likely incurred acoustic trauma during service. The examiner's July 2015 examination report offers conflicting information as to when the Veteran reported that his tinnitus began. In taking the Veteran's history, the examiner notes that the Veteran reported tinnitus that was "constant with onset on active duty." In her opinion and rationale, however, she notes that the Veteran was reporting that his onset of tinnitus was six or seven years prior. The record contains no other information to help resolve the question of when the Veteran's tinnitus began. The Board is inclined to resolve any doubt or confusion as to that question in the Veteran's favor and construe the Veteran as reporting that his tinnitus began at some point during his active duty service. The Veteran is competent to report his own observations of his symptoms, to include a description of when they began and how long they have endured. Moreover, his description as to the onset and duration of his tinnitus is sufficient to establish an etiological relationship (i.e., a nexus) between his tinnitus and his active duty service. Therefore, resolving conflicting evidence in the record as to the question of whether the Veteran's tinnitus began during service in the Veteran's favor, the Board concludes that the Veteran's tinnitus was at least as likely as not incurred during service. The Veteran is entitled to service connection for tinnitus. To that extent, this appeal is granted. 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss that he believes resulted from in-service acoustic trauma. As noted in the July 2015 audiological examination, the Veteran reports that his hearing loss began four or five years before the examination (i.e., as early as 2010). As mentioned above, the Board does not dispute that the Veteran experienced acoustic trauma during service. Also, the July 2015 examination revealed audiological pure tone findings that are consistent with bilateral sensorineural hearing loss. Nonetheless, the preponderance of the evidence shows that the Veteran's hearing loss, which by the Veteran's own given history had its onset decades after his separation from service, is not related etiologically to the Veteran's in-service acoustic trauma or other in-service injury, illness, or event. The Veteran's service treatment records include the Veteran's November 1974 enlistment examination. Audiometric tests conducted during the enlistment examination showed the following pure tones: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 X 10 LEFT 20 10 5 X 10 Repeat audiometric tests conducted during a February 1975 medical examination revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 X 15 LEFT 20 15 20 X 20 Audiometric tests conducted during the Veteran's October 1976 separation examination revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 X 0 LEFT 0 0 0 X 0 In conjunction with the above, the in-service examinations revealed no abnormalities in the Veteran's ears or drums. Consistent with the history given by the examiner during the July 2015 examination, the service treatment records reflect no subjective complaints by the Veteran for any hearing loss or other ear-related problems. There is no reference in the service treatment records to any ear or hearing-related disorders. As mentioned, the Veteran reported during the July 2015 audiological examination that he began noticing hearing loss over the last four or five years. Speech discrimination tests conducted via Maryland CNC word list revealed speech recognition abilities of 96 percent in both of the Veteran's ears. Audiometric tests revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 25 25 40 LEFT 15 10 20 30 40 On review of the Veteran's claims file, the July 2015 examiner opined that the audiometric tests conducted during the Veteran's period of active duty service indicated no significant permanent shift in the Veteran's hearing acuity greater than normal measurement variability. The examiner observed also that the Veteran had a post-service occupational history that included likely post-service noise exposure from work in construction, as a factory worker, and as a lawn worker, although the Veteran did report that he wore hearing protection. Citing a 2006 study by the Institute of Medicine, the examiner noted that the current understanding of the medical community is that a prolonged delay in the onset of noise-induced hearing loss is unlikely. The examiner's opinion is not rebutted by any contrary medical opinions or evidence in the record. Indeed, it is consistent with the Veteran's own reported history concerning the onset of his hearing loss, the findings from the examination, and the other evidence in the record. In an August 2015 notice of disagreement, the Veteran's attorney argued that the Veteran had acoustic trauma during service as a Field Artillery Man and that the Veteran "clearly did not experience acoustic trauma" after service. First, this argument is inconsistent with the Veteran's occupational history and history of post-service occupational noise exposure, which he self-reported during the July 2015 examination. Moreover, the Veteran's attorney's argument in and of itself is unavailing because the Veteran's in-service acoustic trauma was recognized and conceded by the examiner, as it is here in the Board's analysis. The Board finds the examiner's opinion highly probative and persuasive. The evidence shows that the Veteran's bilateral hearing loss was incurred decades after his separation from service and that it is less likely than not that the Veteran's hearing loss resulted from an in-service injury, illness, or event, to include in-service acoustic trauma. The Veteran is not entitled to service connection for bilateral hearing loss. To that extent, this appeal is denied. 3. Entitlement to service connection for left and right knee disorders. The Veteran claims entitlement to service connection for right and left knee disorders. In his August 2016 notice of disagreement, he asserts that the claimed disorders were incurred during service. He does not, however, point to any specific trauma, injury or other event that occurred during service. Relative to his right knee specifically, he also raises the alternating theory that his right knee condition may have arisen secondary from his left knee disorder. The preponderance of the evidence shows that the Veteran's right and left knee disorders were incurred decades after the Veteran was separated from service and that it did not result from an in-service injury, illness, or event. The Veteran is not entitled to service connection for right and left knee disorders. Contrary to the Veteran's assertion that his left knee disorder was incurred during service, the service treatment records are entirely silent for any subjective complaints, objective findings, treatment, or diagnosis related to the Veteran's left knee. Repeated physical examinations conducted as part of the Veteran's November 1974 enlistment examination, February 1975 medical examination, and October 1976 separation examination all revealed no evidence of any abnormalities in the Veteran's lower extremities. Notably, the Veteran expressly denied having any history of knee problems during each of those examinations. The post-service treatment records show initial complaints by the Veteran of left knee pain during VA treatment in September 2013. Left knee x-rays taken at that time showed severe tricompartmental osteoarthritis. A left knee MRI showed a complex degenerative tear of the body and posterior horn extending to the root of the lateral meniscus, tricompartmental chondrosis, proximal tibiofibular osteoarthritis, and anterior cruciate ligament ganglion cyst. Records for subsequent VA treatment received by the Veteran through September 2016 document ongoing complaints for left knee pain. The records show that the Veteran first reported right knee pain during VA treatment in February 2015, as records from that date indicate "extreme pain in both knees." March 2015 treatment records reference osteoarthritis in both of the Veteran's knees. Still, the post-service treatment records provide no opinions concerning the etiology of the Veteran's knee disorders. More notably, they do not document any information or other evidence that even suggests that the Veteran's knee problems had their onset during service or that there may be an etiological relationship between the Veteran's knee problems and his active duty service. The Board is aware that the Veteran did not undergo an examination of his knees during the development of his appeal. Nonetheless, in the absence of any competent and/or probative evidence even suggesting the existence of an etiological relationship between the Veteran's knee disorders and his active duty service, the relatively low evidentiary standard for triggering VA's duty to assist in affording the Veteran such an examination still is not met. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The preponderance of the evidence shows that the Veteran's left knee disorders and right knee disorder were incurred decades after the Veteran's separation from active duty service and that they did not result from an in-service injury, illness, or event. Given the Board's conclusion relative to the left knee issue, the Veteran's suggestion that his right knee disorder may have arisen secondarily from his left knee disorder is moot and not germane to the Board's analysis. The Veteran is not entitled to service connection for right and left knee disorders. To that extent also, this appeal is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Lee 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.