Citation Nr: 18124010
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-25 333
DATE:	August 3, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is granted.
Entitlement to service connection for tinnitus is granted.
REMANDED
Entitlement to service connection for a right knee disability is remanded.
Entitlement to service connection for a left knee disability is remanded.
FINDINGS OF FACT
1. The Veteran’s bilateral hearing loss is related to service.
2. The Veteran’s tinnitus is related to service.
CONCLUSIONS OF LAW
1. The criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).
2. The criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from June 1976 to May 1982.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon, which denied the benefits being sought.
In June 2018, the Veteran testified at a live video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record.
Entitlement to service connection for bilateral hearing loss and tinnitus is granted
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). 
To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. 
The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 
For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 
The Veteran underwent a VA examination in January 2014. His pure tone thresholds, in decibels, were as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	20	25	20	45
LEFT	10	20	25	30	50

The average pure tone threshold was 28 decibels in the right ear and 31 decibels in the left ear. His word recognition score using the Maryland CNC test was 96 percent in both the right and 94 in the left ear. The Veteran’s bilateral hearing loss meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385 (2017). Thus, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. 
Tinnitus is a condition that is capable of lay observation, and the Veteran’s reports of ringing in his ears are credible. Charles v. Principi, 16 Vet. App. 370 (2002).  The first element of a service connection claim regarding tinnitus is also satisfied.
The Veteran contends that his bilateral hearing loss and tinnitus were incurred in service and had continued since then.  At his Board hearing in June 2018, he testified that his military occupational specialty (MOS) was that of a pavements maintenance specialist, “assigned as a worker on the cement crew, [doing] repairs and replacement of damaged concrete on the runways taxiway, parking areas, and base streets.”  Also, during the summer months of 1976 and 1977, he was involved in the replacement of the entire centerline at Offutt Air Force Base, which involved using heavy equipment, jackhammer, and headache balls to break up concrete, all while aircrafts, including 747’s, were taking off and landing continually.  He sometimes performed his tasks without hearing protection, and at other times, with “little plastic air plugs” provided by the military.
The veteran also testified that post-service, he was involved in the law enforcement field and fired firearms at the range but would “always wear full headgear, earmuffs and sometimes, depending on the range, required to put in foam earplugs [in addition to] the earmuffs.”
The Board finds that the Veteran was exposed to excessive noise in service. The Board finds the Veteran’s statements regarding his in-service noise exposure and the ringing in his ears to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfied with respect to both issues. Shedden, 381 F.3d at 1166-67.
At his April 2013 VA examination, the examiner provided a negative nexus opinion as to both hearing loss and tinnitus. Regarding hearing loss, he cited as his rationale that 
[b]ased on [the] C-file review, [the Veteran’s] hearing was found to be within normal limits at the time of enlistment and separation.  Although the definitive studies to address whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure, have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur… Therefore, the current hearing loss is less likely than not caused by or a result of an event and/or MOS in military service.  
Regarding tinnitus, the examiner indicated that the Veteran did not report recurrent tinnitus.  
The Board finds the January 2014 VA audiological examiner’s findings unpersuasive as to the Veteran’s bilateral hearing loss and assigns little probative value to his negative nexus opinions. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  The examiner relied on the normalcy of the Veteran’s hearing at enlistment and separation and concluded that even though no studies have addressed whether permanent noise-induced hearing loss can develop later in life, after the cessation of noise exposure, physical data shows that it was unlikely.
The probative evidence of record is void of any other concurrent causes for the Veteran’s current bilateral hearing loss. The Veteran credibly testified at his hearing that he worked in law enforcement after service, but would always wear full headgear, earmuffs and sometimes, foam earplugs in addition to the earmuffs, when he went to the firing range.   
Further, the Veteran also testified that his tinnitus began in service. Tinnitus is considered an “organic disease of the nervous system” under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable with regard to tinnitus. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). During his hearing testimony, the Veteran explained that when he was examined in January 2014, he indeed denied having had tinnitus.  He, however, meant that he did not have it at “that moment” when he was being examined.  The Veteran is competent to state that he experiences tinnitus and that it has persisted since service. Charles, 16 Vet. App. 370. 
The Veteran has continuously held that his bilateral hearing loss began in service and he has experienced the continuity of symptoms since then. Hearing loss is a chronic condition as outlined in 38 C.F.R. § 3.309 (a). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b) (2017); Walker, 708 F.3d 1331. 
The Board finds the Veteran’s lay statements and hearing testimony regarding the onset and continuity of his bilateral hearing loss and tinnitus, to be both competent and credible.  Thus, a grant based on the continuity of symptomatology is warranted for bilateral hearing loss and tinnitus.  Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for tinnitus and bilateral hearing loss. 38 U.S.C. § 5107 (b) (2017). The appeals are granted.
REASONS FOR REMAND
Entitlement to service connection for a right knee and a left knee condition is remanded
The Veteran contends that he has a bilateral knee disability that was incurred in service.  Specifically, he contended during his hearing that he fell and hurt his left knee in service.  In addition, both knees were damaged from jumping approximately five feet in and out of dump trucks, climbing over “broken chunks of concrete” that were “usually 36 to 48 inches thick,” having to deal with using a jackhammer to break up the miniature mountain-like concrete pieces into smaller pieces, and the shoveling of such heavy debris.  His knees often swelled up, and he had to use ice. The Veteran’s DD-214 shows that he was a pavements/road maintenance specialist for three years and ten months. 
In the alternative, the Veteran has argued that because of his left knee injury in service, he was forced to over-use his right knee for the support thus, causing the right knee condition.  The Veteran testified that he had not had any intercurrent injuries to the knees.  He has, however, banged up his knees from the loss of instability caused by the knees twisting, swelling and buckling. 
The Veteran was afforded a VA knees examination in January 2014.  The examiner offered a negative nexus opinion and noted that the Veteran was seen for a left knee contusion in service, but there was “no follow-up; apparently, condition resolved. He was [also] seen for dull aching pain and pressure in [right] knee in February 1981 [and] no documentation or follow-up suggest[s] chronicity in knees during service. Report of [the] Clinical evaluation of April 1982 [before] discharge duty does not show subjective, objective or diagnosis on bilateral knee condition.”  
The Veteran has argued that this January 2014 VA opinion is inadequate because the examiner did not address or consider the impact that his MOS as a concrete worker and the duties associated with that MOS had on his knees.  The Board agrees.  Once VA has provided a VA examination, even if it not statutorily obligated to do so, an adequate examination must be provided.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  A new examination is warranted.  
Accordingly, the matters are REMANDED for the following action:
1. Schedule the Veteran for a VA examination with an appropriate clinician for his right and left knee disabilities.
The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.  
The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding.
Although an independent review of the claims file is required, the examiner’s attention is drawn to the following:
a.	The Veteran’s DD-214, showing that he was a pavements/road maintenance specialist for three years and ten months.
b.	October 5, 1976, STR noting swollen left knee, with tenderness, after reporting of a fall thereon. 
c.	February 25, 1981, STR noting recurring right knee pain, on and off for the last five years.
d.	The Veteran’s separation examination showing normal lower extremities.
e.	The Veteran’s June 2018 hearing testimony where he described what he did in service as a pavements/road maintenance specialist. 
The examiner must provide a diagnosis for each bilateral knee condition and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that:
a.	any identified left knee condition began during active service, or is related to an incident of service; or if arthritis is diagnosed, within one year after discharge from active service. 
b.	any identified right knee condition began during active service, or is related to an incident of service; or if arthritis is diagnosed, within one year after discharge from active service.
IF, AND ONLY IF, the examiner determines that the Veteran’s left knee condition is related to active service, but the right knee did not, then the examiner must provide an opinion as to:
a.	whether the Veteran’s right knee condition is at least as likely as not (50 percent or greater probability) caused by his left knee condition.
b.	whether the Veteran’s right knee condition is at least as likely as not (50 percent or greater probability) aggravated, i.e., any increase in severity, beyond the natural progression by the left knee condition. 
The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 
2. Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.  

 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Stevens, Associate Counsel 

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.