Citation Nr: A25034412 Decision Date: 04/15/25 Archive Date: 04/15/25 DOCKET NO. 240411-432549 DATE: April 15, 2025 ORDER Service connection for tinnitus is granted. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran did not participate in a toxic risk exposure activity (TERA) during any period of service. 2. The Veteran's tinnitus began in service. 3. The Veteran's right knee disability, diagnosed as mild degenerative arthritis, was not shown as chronic in service and arthritis did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability has not otherwise been shown to be etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1988 to July 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2024 rating decision. The Veteran requested a higher level review (HLR) of this decision. The HLR decision denied the claims in April 2024, and the Veteran timely appealed this rating decision to the Board, requesting the Direct Review Docket. This means that the Board, in adjudicating this appeal, may only review the evidence that was of record at the time of the February 2024 rating decision. To the extent evidence was received after that time, the Board may not consider it unless a supplemental claim is received that either identifies or resubmits the evidence. The Veteran seeks service connection for tinnitus and for a right knee disability. Generally, to establish service connection a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, to include organic diseases of the nervous system, such as tinnitus, and arthritis will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). i) Service connection for tinnitus is granted. The Veteran contends that his tinnitus initially manifested during service from having to work on the flight line loading aircraft and weaponry (e.g., rifles) during basic training without having been issued hearing protection (flight line). See VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ), dated in December 2020 at page (pg.) 5 and VA Form 21-4138, Statement in support of Claim, received by VA in October 2023)). At the December 2020 VA examination, the Veteran explained that his tinnitus onset in 1990 during Operation Desert Storm/Desert Shield when working on the flight line and unloading aircraft. At a VA examination in 2021 the Veteran asserted that his tinnitus had begun a long time ago, which the examiner suggested was 10+ years. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran credibly reported that he was exposed to noise trauma during service, that he experienced tinnitus during service and that he continued to experience it since then. Accordingly, service connection for tinnitus is granted. ii) Service connection for a right knee disability is denied. The Veteran maintains that his right knee disability was caused by playing sports during service, but that he never sought treatment during service. He maintains that he has been told that his knee is damaged and that it has arthritis. See VA Form 21-4138, Statement in Support of Claim, received by VA in September 2023. At the outset, the Board notes that in October 2023, VA issued a memorandum indicating the Veteran did not participate in a TERA. The Board additionally finds that the Veteran was not exposed to toxins that may have caused his right knee disability. The Veteran's service treatment and personnel records do not indicate such exposure. As such, the Board will not consider exposure to a TERA as an "in-service incurrence" for the Veteran's right knee disability claim on appeal. In the appealed April 2024 rating action, the Agency of Original Jurisdiction (AOJ) found a current diagnosis of right knee arthritis based on VA treatment records dated May 28, 2023 that confirmed a diagnosis of mild degenerative joint disease. This favorable finding is binding on the Board. Thus, Shedden element number one, evidence of a current disability, has been met. Regarding Shedden element number two, in-service injury, the Veteran's service treatment records (STRs) are silent for complaints or clinical findings referable to his right knee. A July 1991 service separation examination reflects that the Veteran's lower extremities were evaluated as "normal." The Veteran denied having had a "Trick" or locked knee and arthritis, rheumatism or bursitis on an accompanying Report of Medical History. As such, STRs do not show any right knee injury or disability during service. The Veteran asserted in 2023 that during service he injured his right knee playing sports, but did not go to sick call for his injury. He stated that he was told that his meniscus was damaged (although he did not mention who told him this, or if they had any medical background). He indicated that he had experienced issues with his right knee since active duty, and continued to have pain with motion, locking, swelling, buckling, weakness, and a feeling that the knee would give out. However, such a conclusion is not consistent with the STRs which fail to show a right knee injury or problems during service. Moreover, the VA treatment records show a meniscus injury, but it was his left knee that was injured, and that occurred in 2021 while playing basketball. The first record of any right knee injury was following a bike accident in 2016. Even though thousands of VA treatment records, the Veteran fails to relate any right knee injury from service. Looking to Shedden element number three, nexus to service, the evidence does not support a finding that the mild DJD in the Veteran's right knee is due to his period of military service. In support of the foregoing, the Veteran's STRs are silent for any complaints of or treatment of the right knee. The Veteran has conceded that he did not seek treatment for his right knee in service. The post-service evidence fails to show any knee treatment for many years after service, and the first report of right knee problems appears after a biking accident. The Board acknowledges that there was no VA examination to assess the Veteran's right knee disability. However, VA is not required to provide an examination merely because a Veteran files a claim for benefits. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). VA is obligated to provide a VA medical examination 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 that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the record does not contain any indication that the Veteran's right knee disability may be associated with his service. As stated above, the Veteran has stated that he did not seek any treatment for his right knee during service and post-service evidence reflects that he initially attributed his right knee complaints to a biking incident. There is no evidence, aside from the Veteran's assertions, that his right knee is related to his period of military service. While the Veteran believes his right knee disability is due to his period of service, he is not competent to provide an opinion as to the etiology of his right knee arthritis in this case, as the determination as to what causes arthritis is a medically complex question. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A lay person, such as the Veteran, is considered competent to describe symptoms he has experienced. However, it is then incumbent on the Board to weigh the credibility of the assertions that are presented. Here, the Board does not find the assertion of an ongoing right knee disability from service to be sufficiently credible to either support service connection or trigger the duty to provide an examination. Turning first to the STRs, the Veteran did not report any right knee problem during service, but clearly did seek medical care as needed, as evidenced by dozens of pages of medical treatment records from his three years in service. Had he experienced knee problems in service it is a logical inference that he would have sought care for it given his willingness to seek care for other health conditions. At his separation physical no knee disability was discovered on physical examination, and the Veteran specifically denied any knee problems on his medical history survey. This concession is given more weight by the fact that the Veteran clearly took the time to complete the form as evidenced by his marking other past injuries, but not checking the knees. Again, given his clear review of the form, and willingness to report past injuries, it is logical that if he had a right knee disability at that time, or even just a past knee injury, it would have been reported. It is also noted that the medical officer clearly took time with the Veteran at the examination, as he included eight lines of text describing the Veteran's health condition historically on the medical history survey with no reference to any right knee problems. Following service, the Veteran was clearly active, as his treatment records describe injuries biking and playing basketball. Given that arthritis was not diagnosed for decades after separation, there is not a showing of continuity of symptomatology. Additionally, while thousands of pages of VA treatment records have been generated by the Veteran, he never informed a medical professional that he believed he had a right knee disability from service, prior to filing a claim for disability benefits. While none of these facts on their face are dispositive, the totality of their impact makes it less likely than not that a right knee disability continued from service. Therefore, the Board does not find that a VA examination is warranted, and the Veteran's claim for service connection for a right knee disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.