Decision 19101054

Citation Nr: 19101054
Decision Date: 01/04/19	Archive Date: 01/04/19

DOCKET NO. 15-03 739A
DATE:	January 4, 2019

ORDER

Entitlement to an effective date earlier than December 14, 2011, for grant of service connection for degenerative joint disease of the left knee, status post (SP) medial meniscectomy (hereinafter a “left knee disability”), is denied.

Entitlement to service connection for bilateral hearing loss disability is granted.

Entitlement to service connection for bilateral tinnitus is granted.

REMANDED

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for a gastrointestinal (GI) disability, to include gastroesophageal reflux disease (GERD) is remanded.

Entitlement to increased ratings for manifestations of a left knee disability.

FINDINGS OF FACT

1. The Veteran filed a claim for entitlement to service connection for a left knee disability in November 1979, which was denied by the RO in a March 1980 rating decision.

2. The Veteran did not appeal the March 1980 rating decision, nor did he submit new and material evidence within one year of that decision; and so, the March 1980 rating decision is final. 

3. The Veteran filed a new claim for entitlement to service connection for a left knee disability that was received by VA on December 14, 2011.

4. The Veteran was granted entitlement to service connection for a left knee disability in a May 2014 Decision Review Officer (DRO) decision, effective December 14, 2011. 

5. Prior to December 14, 2011, there was no formal claim, informal claim, or written intent to file a claim to reopen the previously denied claim of entitlement to service connection for a left knee disability.  

6. The Veteran’s bilateral hearing loss disability and tinnitus are etiologically related to acoustic trauma sustained in active service.  

CONCLUSIONS OF LAW

1. An effective date earlier than December 14, 2011, for the grant of service connection for a left knee disability is not warranted.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2018).

2. The criteria for entitlement to service connection for bilateral hearing loss disability have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018).

3. The criteria for entitlement to service connection for tinnitus have been meet.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active air service from November 1964 to January 1972 and from June 1973 to August 1978.  

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2012, May 2014, and May 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran was scheduled for a videoconference hearing on October 17, 2018, and was provided written notification of the hearing in October 2018.  However, in October 2018, the Veteran cancelled the hearing before the Board.  Therefore, the request for the hearing is deemed withdrawn.  38 C.F.R. § 20.704 (e) (2018).

The Board notes that the Veteran filed a timely notice of disagreement with the denial of entitlement to service connection for lower extremity peripheral neuropathy due to exposure to herbicides.  The Veteran was issued a statement of the case addressing that issue in June 2018.  However, in a June 2018 substantive appeal, the Veteran reported that he no longer wished to pursue that claim as it was a moot point.  A review of the record shows that the Veteran is service-connected for bilateral lower extremity radiculopathy.  Therefore, the Board has limited its consideration accordingly. 

Earlier Effective Date – Left Knee Disability

The Veteran has asserted he is entitled to an effective date prior to December 14, 2011, for his service-connected left knee disability.  Given the sequence of events in this case, the Board finds that an effective date earlier than December 14, 2011, for the grant of service connection for a left knee disability
 addressing that issue in June 2018.  However, in a June 2018 substantive appeal, the Veteran reported that he no longer wished to pursue that claim as it was a moot point.  A review of the record shows that the Veteran is service-connected for bilateral lower extremity radiculopathy.  Therefore, the Board has limited its consideration accordingly. 

Earlier Effective Date – Left Knee Disability

The Veteran has asserted he is entitled to an effective date prior to December 14, 2011, for his service-connected left knee disability.  Given the sequence of events in this case, the Board finds that an effective date earlier than December 14, 2011, for the grant of service connection for a left knee disability is not warranted. 

The Veteran filed a claim for service connection for a left knee disability in November 1979.  That claim was denied in a March 1980 rating decision.  The Veteran did not appeal that rating decision, nor did he submit new and material evidence within one year.  Therefore, the March 1980 rating decision became final.  

The Veteran then submitted a claim to reopen the previously denied claim of entitlement to service connection for a left knee disability that was received by VA on December 14, 2011.  The Veteran was granted entitlement to service connection for a left knee disability in a May 2014 DRO decision.  

A review of the record shows that VA did not receive any correspondence or documents that could be construed as a formal claim, an informal claim, or a written intent to file a claim to reopen the previously denied claim of entitlement to service connection for a left knee disability subsequent to the March 1980 rating decision until the claim to reopen received by VA on December 14, 2011.  

The Board acknowledges that there is an indication from the record that the Veteran had a left knee disability prior to the date VA received his claim to reopen the previously denied claim of entitlement to service connection for a left knee disability.  However, a review of the record shows that the Veteran did not submit any information regarding his left knee disability subsequent to the March 1980 rating decision until his December 14, 2011, claim to reopen was received.  In fact, the Veteran in an October 2018 statement specifically reported that he did not appeal the March 1980 rating decision.  

Accordingly, the Board finds that the effective date in this case has been appropriately assigned as the date the VA received the Veteran’s claim to reopen the previously denied claim of entitlement to service connection for a left knee disability, which is the later of the date of claim and the date entitlement arose.  Therefore, the claim for an earlier effective date for the grant of service connection for a left knee disability is without legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).    

Service Connection- Bilateral Hearing Loss Disability and Tinnitus

The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of acoustic trauma sustained in active service.  Specifically, the Veteran has claimed hazardous noise exposure in the form of jet aircraft engine noise without proper ear protection during active service. 

A review of the Veteran’s service records shows that his military occupational specialty (MOS) during active duty included Aircraft Maintenance Technician and Jet Aircraft Mechanic.  The Board finds that the Veteran’s reported noise exposure is consistent with the facts and circumstances of his service.  Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service.  

Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of bilateral hearing loss disability for VA purposes or tinnitus while the Veteran was in active service.  However, the Veteran has reported that he first experienced decreased hearing acuity and tinnitus while in active service and that his symptoms have continued since that time.  The Veteran is competent to report when he first experienced symptoms of hearing loss disability and tinnitus and that his symptoms have continued since service.  Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  Moreover, the Board finds the Veteran to be credible in that respect. 

In August 2012, the Veteran was afforded a VA audiology evaluation.  At that time, the Veteran reported the in-service noise exposure described above.  Audiogram results at that time showed the Veteran to have bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385 (2018).  The VA examiner diagnosed bilateral hearing loss disability for VA purposes and bilateral tinnitus.  The examiner opined that the Veteran’s bilateral hearing loss disability and bilateral tinnitus were not caused
. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  Moreover, the Board finds the Veteran to be credible in that respect. 

In August 2012, the Veteran was afforded a VA audiology evaluation.  At that time, the Veteran reported the in-service noise exposure described above.  Audiogram results at that time showed the Veteran to have bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385 (2018).  The VA examiner diagnosed bilateral hearing loss disability for VA purposes and bilateral tinnitus.  The examiner opined that the Veteran’s bilateral hearing loss disability and bilateral tinnitus were not caused by or the result of active service.  In this regard, the examiner noted that the Veteran had numerous audiograms throughout service, including at enlistment and separation, that showed normal hearing with no significant threshold shift.  Moreover, the examiner noted the Veteran reported bilateral hearing loss and tinnitus had its onset many years after separation.  

The Board finds the August 2012 VA audiology opinion to be inadequate for adjudication purposes.  In this regard, the examiner did not give appropriate consideration to the Veteran’s lay statements regarding the onset and continuity of his symptoms.  As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection.  

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Here, as noted above, the Veteran is competent to identify decreased hearing acuity and tinnitus, and his statements have been found credible. 

The Board concedes that the Veteran sustained acoustic trauma in active service.  The Veteran has competently and credibly reported decreased hearing acuity and tinnitus during service and since.  The Veteran has current diagnoses of bilateral hearing loss disability for VA purposes and tinnitus.  There is no competent VA medical opinion of record against the claims.  Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise.  Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted.  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

REASONS FOR REMAND

Service Connection – Right Knee Disability and GI Disability 

The Board finds that the Veteran submitted a January 2015 statement that constitutes a timely notice of disagreement with the December 2014 denial of entitlement to service connection for a right knee disability and GERD.  The Veteran has not been issues a statement of the case in response to his notice of disagreement.  Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).  

Increased Ratings – Left Knee Disability

The Veteran was afforded a VA examination of his left knee in August 2018.  However, a review of the examination report shows that the range of motion measurements as reported were inconsistent.  Further, it is unclear from the record whether the Veteran has a disability associated with semilunar cartilage.  Therefore, the Board finds that an additional examination is necessary to accurately determine the current level of severity of all manifestations of the Veteran’s left knee disability.

The matter is REMANDED for the following action:

1. Issue a statement of the case on the issues of entitlement to service connection for a right knee disability and a GI disability, to include GERD.  Inform the Veteran of the requirements to perfect an appeal of those issues.  If the Veteran perfects an appeal with respect to either issue, return that issue to the Board.

2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file.

3. Then, schedule the Veteran for a VA examination to by an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from his service-connected left knee disability.  The claims file must be made
 Veteran’s left knee disability.

The matter is REMANDED for the following action:

1. Issue a statement of the case on the issues of entitlement to service connection for a right knee disability and a GI disability, to include GERD.  Inform the Veteran of the requirements to perfect an appeal of those issues.  If the Veteran perfects an appeal with respect to either issue, return that issue to the Board.

2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file.

3. Then, schedule the Veteran for a VA examination to by an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from his service-connected left knee disability.  The claims file must be made available to, and reviewed by the examiner.  Any indicated studies must be performed.  The examiner must provide all information required for rating purposes, to specifically include whether the Veteran has a disability associated with impairment or removal of semilunar cartilage.

The rationale for any opinions expressed must be provided.

4. Confirm that the VA examination report and any medical opinion provided comport with this remand, and undertake any other development found to be warranted.

5. Then, readjudicate the remaining issues on appeal.  If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response.  Then, return the case to the Board.

 

Kristin Haddock

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Mariah N. Sim, Associate Counsel