Citation Nr: 23016331 Decision Date: 03/17/23 Archive Date: 03/17/23 DOCKET NO. 19-03 297A DATE: March 17, 2023 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left knee disability is granted. FINDINGS OF FACT 1. The most probative evidence supports a nexus between the Veteran's tinnitus and his in-service noise exposure. 2. The most probative evidence supports a nexus between the Veteran's left knee disability and his in-service injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2022). 2. The criteria for entitlement to service connection for left knee disability have been met. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102 3.303 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to August 1994. This appeal to the Board of Veteran's Appeals (Board) arose from August and September 2018 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. §3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). 1. Entitlement to service connection for tinnitus. The Veteran contends that he developed tinnitus due to his service. The evidence establishes that the Veteran has a current diagnosis of tinnitus. His military occupational specialty (MOS) as a calvary scout has a high probability for hazardous noise exposure. In September 2018, the VA examiner opined that it was less likely than not that the Veteran's tinnitus was incurred in service. The basis provided was that the service treatment records were negative for acoustic damage and complaints of tinnitus. The examiner noted that the Veteran's hearing was normal. The examiner continued that the Veteran's episodes were mild and infrequent, which was not indicative of noise induced tinnitus. In May 2019, a Physician's Assistant opined that was at least as likely as not that the Veteran's tinnitus was incurred during his service. The clinician noted that he had a very plausible mechanism of injury with daily exposures to high frequency and high decibel noise as a calvary scout. It was also noted that he did not have other known precipitating factors suspected of contributing to or having worsened his ongoing symptoms. See May 2019 Medical Treatment Record Non-Governmental Facility. The Board notes that tinnitus is a type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Tinnitus is a condition for which the Veteran is uniquely situated to competently identify and report on the onset and duration of this condition. Unlike hearing loss, specific puretone thresholds and speech discrimination scores are not required in order to determine a diagnosis of tinnitus. Therefore, the VA examiner's basis of normal hearing is not determinative in establishing a diagnosis for tinnitus. The Veteran reported the onset of his tinnitus to be during service, describing it as "ringing." He expressed he ignored the ringing during service. The Board finds that the Veteran's statements and testimony as to onset and continuity of symptomatology regarding his tinnitus to be credible. Based on the evidence outlined above, the Board finds that a nexus has been established between his tinnitus and his service. Accordingly, as the criteria for entitlement to service connection for tinnitus have been met, entitlement to service connection is granted. 2. Entitlement to service connection for left knee disability. The Veteran asserts that his current left knee disability was incurred during service. The evidence of the record establishes a current diagnosis of a left knee disability, knee strain. Service treatment records show that in April 1991, the Veteran was assessed to have left knee tendonitis. His left knee was hit with a baseball during practice. Regarding whether there is a nexus, the July 2018 VA examiner opined that it was less likely than not that the Veteran's left knee condition was incurred during his service. The examiner reasoned that the service treatment records showed no evidence that this in-service injury became a chronic problem. The examiner continued that the Report of Medical Examination for separation was negative for a knee condition. The examiner stated that the question concerning the knee problems on the reports of medical history is marked "no". In May 2019, another physician assistant opined that it was at least as likely as not that the Veteran's left knee condition was related to his in-service injury. The clinician explained that based on experience and the medical community, it is known that blunt trauma causing musculoskeletal injury increases the risk for early onset arthritic conditions similar to primary complaints reported by Veteran. The clinician continued that there was no follow up imaging performed to rule out other diagnosis. It was also opined that there were no other known precipitating events believed to contribute to the Veteran's ongoing symptoms. See June 2019 Medical Treatment Record Non-Governmental Facility. The evidence shows that there are conflicting medical opinions on the record. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Based on the evidence of the record, the Board finds that a nexus has been established between the Veteran's left knee disability and his service. The VA medical opinion based the negative nexus opinion solely on the absence of documentation in the separation medical reports. The absence of in-service documentation is not an absolute bar to service connection and should not be the sole basis of a negative opinion, without consideration of the Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006). The Board assigns high probative value to the private medical opinion. The clinician reviewed the particulars of the Veteran's case and applied the appropriate medical principles and literature to those facts and provided an extensive rationale to support the conclusions reached. Accordingly, as the criteria for entitlement to service connection for left knee disability have been met, entitlement to service connection is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.