Citation Nr: 22015374 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-15 975A DATE: March 17, 2022 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right knee disorder, claimed as secondary to a left knee disorder, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, his currently diagnosed tinnitus had its onset during his active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1983 to May 1986. This matter comes before the Board on appeal from a rating decision issued in January 2017 by a Department of Veterans Affairs (VA) Regional Office. In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. While there were technical difficulties that resulted in two transcripts, complete copies of both of them are associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the April 2019 statement of the case. 38 C.F.R. § 20.1305(c). In this regard, the Board notes that a February 2016 rating decision originally denied service connection for a left ankle disorder, left knee disorder, bilateral hearing loss, and tinnitus. While the Veteran did not enter a notice of disagreement as to such denial, VA examinations and opinions were provided in connection with such claims in September 2016 and November 2016. Consequently, as such new and material evidence was received within one year of the issuance of the February 2016 rating decision, his claims were reconsidered in the January 2017 rating decision on appeal. 38 C.F.R. § 3.156(b). Therefore, the current appeal stems from the Veteran's original claims and the issues have been recharacterized as shown on the title page of this decision. 1. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that his current tinnitus had its onset during his active duty service as a result of noise exposure therein and has been recurrent since such time. In this regard, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus during his September 2021 Board hearing. See Charles v. Principi, 16 Vet. App. 370 (2002). Further, such diagnosis was confirmed by at September 2016 VA examination. Also, while his service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to tinnitus, the Board finds his statements regarding in-service noise exposure to be competent and credible as such are consistent with his military occupational specialty as a cannon crewman. Thus, the remaining inquiry is whether the Veteran's tinnitus had its onset in, or is otherwise related to, his military service, to include his noise exposure therein. In this regard, the Veteran underwent a VA audiological examination in September 2016. At such time, the examiner opined that his currently diagnosed tinnitus was less likely as not caused by or a result of noise exposure in the military. In support thereof, she reasoned that tinnitus may occur following a single exposure to high intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, she explained that one would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. The examiner also noted that the Institute of Medicine (IOM) never stated that tinnitus could result from undiagnosed noise injury and, in most cases, tinnitus was accompanied by measurable hearing loss. She further noted that the audiogram was an imperfect measurement, but it was accepted as the objective basis for determining noise injuries. Nonetheless, at his September 2021 Board hearing, the Veteran testified that his tinnitus began during his active duty service and has been reoccurring since such time. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles, supra. Thus, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed tinnitus had its onset during his active duty service. Therefore, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a left ankle disorder. 4. Entitlement to service connection for a right knee disorder, claimed as secondary to a left knee disorder. The Veteran contends that he has left knee and ankle disorders directly related to his military service, and a right knee disorder as secondary to his left knee disorder. In regard to the former claims, he testified that he injured his left knee and ankle after falling during a skiing incident. In this regard, his STRs reveal that, in March 1984, the Veteran complained of left knee and ankle pain for 3 days as he injured himself while skiing. He was treated at a German hospital with cream and tape, and an assessment of injury to left knee and ankle was noted. In April 1984, the Veteran continued to complain of left knee and ankle pain for 2 weeks and an assessment of mobility impairment was noted. However, at a November 2016 VA examination, the examiner opined that the Veteran's currently diagnosed left knee strain and left ankle degenerative arthritis were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of her opinion regarding the Veteran's left knee disorder, the examiner explained that the there was no chronicity of a left knee disorder/complaint in his STRs, and his records were silent for a knee condition from 1986 to present. She also reasoned that the Veteran's knee sprain in 1984 was treated with conservative measures and there was no further mention of such condition in his STRs. The examiner also indicated that his left knee MRI was essentially normal except for Baker's cyst and there was no indication of trauma to the left knee as the Veteran had a normal knee examination. Thus, she concluded it was less likely as not that the Veteran's left knee disorder was incurred in or was caused by the left knee sprain during service. With regard to the left ankle disorder, the examiner reasoned that the Veteran's records were silent from 1984 to 2016 for a left ankle disorder and his X-rays showed mild degenerative disease, which was most likely age-related. She also noted that the Veteran's ankle injury during service was treated with conservative measures and his ankle at the time of the VA examination was normal. Thus, she concluded it was less likely as not that the Veteran's claimed left ankle disorder was incurred in or was caused by a left ankle sprain during service. However, during the September 2021 Board hearing, the Veteran testified that he continued to have symptoms related to his left knee and ankle since his in-service injury as he could not extend his left leg, had pulling on the back of his leg, pain, and constant tension. Thus, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such concerns. In regard to the Veteran's claimed right knee disorder, he alleges that such is secondary to his left knee disorder as he has had to favor his left knee and place more weight on his right knee due to such disorder. Consequently, such claim is inextricably intertwined with the claim for service connection for a left knee disorder, which is remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, adjudication of such claim must be deferred pending the outcome of the claim for service connection for a left knee disorder. Additionally, the November 2016 VA examiner determined that the Veteran did not have a right knee disorder, but noted the Veteran's reports of right knee pain due to overcompensating for the left knee, for which he took Tylenol and meloxicam. She opined that the Veteran's right knee disorder was less likely as not proximately due to or the result of his left knee disorder. Specifically, she reasoned that the Veteran's medical records since separation from service until present were silent for a chronic right knee condition/complaint with treatment plan and that there was no causal relationship between a right knee condition caused by a left knee condition. Thus, she concluded it was less likely as not that the Veteran's claimed right knee disorder was proximately due to the Veteran's left knee sprain that occurred during service. However, the Veteran's post-service treatment records reveal that, in July 2011 and May 2012, bilateral osteoarthritis was diagnosed. Additionally, the VA examiner did not consider the Veteran's lay statements of having to favor his right knee due to his left knee disorder nor did she provide an opinion regarding aggravation. Thus, on remand, an addendum opinion address such matters should be obtained. Finally, as relevant to all claims, the Veteran indicated that there may be outstanding relevant treatment records from Optimal Performance and Physical Therapies. Thus, on remand, the AOJ should attempt to obtain such records. 4. Entitlement to service connection for bilateral hearing loss. The Veteran contends he has bilateral hearing loss as a result of his acknowledged in-service noise exposure. In this regard, while the September 2016 VA examination revealed a diagnosis of bilateral hearing loss for VA purposes, the examiner opined that such disorder was less likely than not caused by or a result of noise exposure in the military. In support thereof, she explained that, according to the Noise Manual and Occupational Safety and Health Administration (OSHA) regulations, the degree of any noise-induced hearing loss was highly correlated with the intensity of the noise and the length of exposure time. In this regard, she noted that, in the Veteran's civilian life, he had 40 years of occupational industrial noise exposure and a significant history of recreational/vocational noise exposure. Thus, she concluded that the nexus with military service was far less than a 50/50 probability in light of his exposure to hazardous noise in civilian life, which was far greater than his 3 years of hazardous noise in the military. Additionally, the examiner cited to the 2005 IOM study and noted that there was insufficient 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. She also noted that, although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that such delayed effects occur. However, as the VA examiner did not consider the qualifications noted in the IOM 2005 study that an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure, the Board finds that a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran's bilateral ear hearing loss. McCray v. Wilkie, 31 Vet. App. 243 (2019). Additionally, the Veteran testified that his post-service work history consisted mostly of working in a medical repair lab, which was similar to working in a dentist's office, where he was not exposed to excessive loud noises, and his hearing loss started more than 15 years previously. Thus, in offering such addendum opinion, the examiner should consider and address such lay statements. The matters are REMANDED for the following action: 1. The Veteran should be requested to submit or authorize VA to obtain any outstanding records from Optimal Performance and Physical Therapies. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. After all outstanding records have been associated with the record, return the record, to include a copy of this remand, to the VA examiner who conducted the November 2016 knee and ankle examination. If she is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's left knee and left ankle disorders, currently diagnosed as left knee strain/osteoarthritis and left ankle degenerative arthritis, had its onset in, or is otherwise related to, his military service, to include his in-service March 1984 skiing incident. (B) The examiner should also offer an opinion as to whether arthritis of the Veteran's left knee and/or left ankle manifested within one year of his active duty service discharge in May 1986, i.e., by May 1987, and, if so, to describe the manifestations. In offering such opinions, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's STRs are silent as to any left knee or left ankle disorder, or complaints thereof. He or she is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. The examiner must further consider and discuss the lay statements of record regarding the continuity of symptomatology of left knee and ankle pain since service. (C) If the Veteran is found to have a left knee disorder related to service, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that his right knee disorder, diagnosed as osteoarthritis, is caused or aggravated by his left knee disorder, to include as a result of favoring the right knee due to difficulties using the left knee. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 3. After all outstanding records have been associated with the record, return the record, to include a copy of this remand, to the VA examiner who conducted the September 2016 audiological examination. If she is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's currently diagnosed bilateral hearing loss, had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service noise exposure. (B) The examiner should also offer an opinion as to whether the Veteran's bilateral hearing loss manifested within one year of his active duty service discharge in May 1986, i.e., by May 1987, and, if so, to describe the manifestations. In offering the foregoing opinions, the examiner must consider and discuss the Veteran's statements of record regarding the onset and continuity of symptomatology referable to the Veteran's bilateral hearing loss. The examiner should also discuss the qualifications noted in the IOM 2005 report that "[t]here 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 "definitive studies to address this issue have not been performed," and the notation that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure," which may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss. The examiner is further advised that the basis for a negative opinion must not be based solely on the lack of evidence of hearing loss in the Veteran's STRs or a lack of medical records demonstrating a continuity of care after service. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.